Ekta Patel v The Secretary of State for the Home Department

Historic injustice in immigration law is confined to a generally recognised past wrong inflicted by the United Kingdom on an identifiable class, whose consequences must be acknowledged in present applications. It can substantially, and sometimes decisively, reduce the weight of immigration control where Article 8 is engaged.

Historical injustice instead concerns an individual wrong in the exercise, or non-exercise, of immigration functions. Its relevance to Article 8 depends on the nature and consequences of that wrong. Difficulties or disappointments caused by an employer or educational institution will rarely justify reducing the ordinary weight of effective immigration control.

Where the public interest is reduced, this should ordinarily be addressed expressly under section 117B(1) of the Nationality, Immigration and Asylum Act 2002. A tribunal must not reduce that interest and also increase the weight of private life for the same reason.

The appellant, an Indian national, appealed against the refusal of her human-rights claim based on private life under article 8 of the European Convention on Human Rights. She had entered as a student and later worked for Bakkavor Foods Limited. Her employer did not sponsor further leave, and she subsequently obtained only notice pay in Employment Tribunal proceedings; her discrimination claims failed.

The First-tier Tribunal dismissed her appeal on 30 August 2019. It found that she had a limited private life, that her immigration status had been precarious or unlawful, and that she could reintegrate in India. It held that the employer's poor treatment did not outweigh the public interest in immigration control.

Before the Upper Tribunal, the appellant contended that her experiences with her employer and the respondent amounted to historic injustice, or otherwise required a reduction in the weight given to immigration control. She also challenged the First-tier Tribunal's use of the expression “very strong or compelling claim”.

1. Appeal dismissed. The First-tier Tribunal made no error of law in dismissing the article 8 appeal.

2. The appellant had suffered neither historic nor historical injustice. True historic injustice concerns a past immigration wrong now generally recognised by the United Kingdom government as affecting a defined class, such as the British overseas citizen and Gurkha cases. It is not dependent on the individual dealings between a claimant and the Secretary of State. Once article 8 is engaged, it may greatly diminish the weight otherwise attached to immigration control.

3. Historical injustice concerns a wrongful exercise or non-exercise of immigration functions affecting an individual. It may include the wrongful withholding of a beneficial policy, dysfunctional delay, or an adverse decision based on a factual mistake. Its relevance to proportionality depends upon the particular failure and its consequences.

4. The appellant could identify no beneficial policy wrongly withheld, erroneous immigration finding, or other wrongful act by the respondent. The Employment Tribunal had rejected her discrimination claims. At most, an employee without authority may have given a misleading impression about future sponsorship. There was no evidence that the appellant sought another sponsor once difficulties emerged, or informed the respondent at the material time.

5. Disappointment or inadequate conduct by an employer does not ordinarily reduce the public interest in effective immigration control. The exceptional adviser-failure circumstances in Mansur (immigration advisors failings: Article 8) Bangladesh [2018] UKUT 274 did not assist the appellant.

6. Under sections 117B(1), (4) and (5) of the Nationality, Immigration and Asylum Act 2002, any reduction in the ordinary public interest should usually be made expressly under section 117B(1), or in some cases through the weight given to private life. The same circumstance must not be counted twice. The appellant's status remained precarious because she had never had indefinite leave to remain, and there were no compelling reasons to dilute the statutory considerations.

7. The First-tier Tribunal's reference to a “very strong or compelling claim” correctly followed Agyarko (2017) UKSC 11. It did not apply the distinct deportation test in section 117C(6).

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal's decision.
• First-tier Tribunal: dismissed the appellant's appeal against the refusal of her human-rights claim in a decision promulgated on 30 August 2019.