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

In a human rights appeal, proof that an appellant meets an Immigration Rule entitling them to leave is material to Article 8 proportionality. The public interest in immigration control cannot weigh against the appellant in respect of that rule, although a separate public-interest factor may still justify removal.

Completion of ten years’ lawful residence will generally be a new matter under section 85 of the Nationality, Immigration and Asylum Act 2002. If the temporal requirement is met and there is no indication that an application under paragraph 276B would fail, the appeal should be allowed unless a discrete factor makes removal proportionate. The Tribunal cannot direct a grant of indefinite leave. A section 120 statement of additional grounds must be in writing.

The appellants, a Nigerian mother and her two children, appealed against refusals of their applications for leave to remain which were also treated as refusals of human rights claims.

The First-tier Tribunal held that it lacked jurisdiction after the mother and elder child completed ten years’ lawful residence while their appeals were pending. Upper Tribunal Judge Finch set that decision aside and directed that the appeals be remade in the Upper Tribunal.

The central issues were whether reliance on paragraph 276B of the Immigration Rules was a new matter requiring the respondent’s consent, whether the Article 8 appeals should succeed, and whether additional grounds under section 120 of the Nationality, Immigration and Asylum Act 2002 could be advanced orally or in a witness statement.

1. All three appeals were allowed. The question in a human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 is whether refusal of the human rights claim is unlawful under section 6 of the Human Rights Act 1998. The Tribunal must determine Article 8 proportionality; it does not conduct a free-standing appeal on compliance with the Immigration Rules.
2. Completion of ten years’ continuous lawful residence generally constitutes a new matter under section 85. It is a factually distinct matter capable of materially affecting the sole statutory ground of appeal because paragraph 276B may entitle the person to indefinite leave to remain. The respondent consented to its consideration in these appeals.
3. Where an appellant proves compliance with an Immigration Rule that entitles them to leave, the ordinary public interest in maintaining immigration control cannot weigh against them in the proportionality balance insofar as it concerns that rule. Other, discrete public-interest considerations, including applicable general grounds of refusal, may nevertheless make removal proportionate.
4. Where the ten-year requirement is met and nothing indicates that a prompt paragraph 276B application would probably fail, the human rights appeal should be allowed unless a discrete public-interest factor justifies removal. It would otherwise generally be disproportionate to require departure before a reasonable opportunity to apply for indefinite leave. The Tribunal may only allow the appeal; it cannot direct the form or duration of leave. The Secretary of State need only grant leave sufficient to enable the application to be made.
5. The children satisfied paragraph 276ADE(1)(iv), and removal would be unreasonable. The mother also met the exceptional-circumstances provision in GEN.3.2(2), since requiring her to leave separately would have unjustifiably harsh consequences.
6. A section 120 statement must be written and made to the Secretary of State or an immigration officer. A served witness statement may qualify, but an oral statement does not.

• Upper Tribunal (Immigration and Asylum Chamber): remade the appeals after Upper Tribunal Judge Finch had set aside the First-tier Tribunal’s jurisdiction decision; all three human rights appeals were allowed.
• First-tier Tribunal: Judge Fox decided on 28 February 2018 that it had no jurisdiction to entertain the appeals.