Karen Rickel Birch v The Secretary of State for the Home Department

A reasonable and genuine misapprehension that a person has immigration leave may require a less stringent approach when assessing the proportionality of removal under article 8. The observation in Agyarko v SSHD at [2017] UKSC 11 is not confined to a person whose leave is precarious. It can also apply where the person in fact had no leave.

The restriction in section 85 of the Nationality, Immigration and Asylum Act 2002 on considering a new matter applies to the First-tier Tribunal, not the Upper Tribunal. When re-making an appeal, the Upper Tribunal may therefore consider relevant developments since the decision under appeal.

The appellant, a Jamaican national, appealed against the First-tier Tribunal's dismissal of her human-rights appeal from the refusal of leave to remain. She had lived in the United Kingdom without valid leave since 2001, but was genuinely deceived into believing between 2007 or 2008 and 2015 that she had indefinite leave to remain.

The First-tier Tribunal found that removal would be proportionate under article 8. The central issues before the Upper Tribunal were whether that tribunal had failed to take proper account of the appellant's mistaken belief in leave and whether, when re-making the appeal, the Upper Tribunal could consider that she had by then accrued over twenty years' continuous residence.

1. Appeal allowed. The First-tier Tribunal made an error of law. Its decision was set aside and the Upper Tribunal re-made the decision.

2. The appellant's genuine belief that she had indefinite leave during a substantial period of her residence was material to the article 8 balancing exercise. The court's observation in Agyarko v SSHD [2017] UKSC 11, at [53], concerning a reasonable misapprehension about the ability to maintain family life in the United Kingdom, was capable of applying to a person with no leave as well as to a person with precarious leave. It would be wrong to confine that observation to the latter category.

3. The First-tier Tribunal should therefore have treated the period of genuine mistake differently from periods when the appellant knew she had no leave. Since the period covered the development of her relationship and a considerable part of her private life, the Upper Tribunal could not conclude that the proportionality assessment, including the application of section 117B of the Nationality, Immigration and Asylum Act 2002, would have been unchanged.

4. The bar in section 85(5) of the Nationality, Immigration and Asylum Act 2002 on considering a new matter did not govern proceedings in the Upper Tribunal. Section 81 defined “the Tribunal” in that Part as the First-tier Tribunal. The Upper Tribunal could accordingly consider the appellant's accrued twenty years' continuous residence when re-making the appeal.

5. At the date of re-making, the appellant met the substantive requirements of paragraph 276ADE of the Immigration Rules. In her circumstances, removal would therefore be disproportionate. The appeal was allowed.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decision was set aside for error of law. The Upper Tribunal re-made the decision and allowed the appeal.
• First-tier Tribunal: Judge Carroll dismissed the appellant's appeal against the refusal of leave to remain on human-rights grounds.
• Permission stage: Permission to appeal was granted by the Upper Tribunal after the High Court quashed an earlier refusal of permission. No citation is stated.