MD Mijanur Rahaman v The Secretary of State for the Home Department

In an Article 8 appeal, a procedural failure to consider post-hearing submissions is immaterial where the omitted argument could not lawfully affect the result. Historical injustice requires either belated recognition that a class was wrongly treated or individual injustice caused by wrongful operation or non-operation of immigration functions. A refusal made lawfully under the rules and law in force at the time is not transformed into historical injustice by later evidence or legal change. The person cannot be treated as having held leave or accrued lawful residence when they did not. A tribunal permitted to receive late written submissions should decide whether to admit them, but that procedural issue cannot alter the outcome where the underlying argument is incapable of succeeding.

Mr Rahaman and his wife appealed to the Court of Appeal against the Upper Tribunal’s dismissal of their appeals concerning refusals of leave to remain outside the Immigration Rules. Their Article 8 claims included an argument, raised for the first time at the First-tier Tribunal hearing, that an earlier refusal of Mr Rahaman’s Tier 1 (Entrepreneur) application constituted a historical injustice.

The First-tier Tribunal permitted written submissions and authorities on that issue within seven days. They were filed late and were not placed before the judge because of an administrative oversight. The Upper Tribunal considered the error immaterial and also treated the allegation as a possible new matter under section 85 of the Nationality, Immigration and Asylum Act 2002. The central issue was whether the omission could have affected the outcome.

Appeal dismissed. Lord Justice Lewis gave the reasons, with which Lady Justice Andrews and Lady Justice Thirlwall agreed.

1. The prior question was whether the First-tier Tribunal’s failure to consider the late submissions was material. If a properly directed tribunal could not lawfully find the alleged historical injustice, the omission could not have led to a different decision.
2. Historical injustice may concern the belated recognition that a class of persons was wrongly treated, or an individual injustice caused by the wrongful operation or non-operation of immigration functions: Patel v Secretary of State for the Home Department (historic injustice): NIAA Part 5A [2020] UKUT 00351 (IAC). Neither category applied. The earlier application had failed because the required documentation was not provided. Under the law then in force, the First-tier Tribunal could consider only material submitted to the decision-maker with the application, not later documents. The refusal and subsequent dismissal of the appeal were therefore lawful.
3. A later change in law, or evidence showing that a later application might succeed, did not establish historical injustice in relation to the earlier refusal. The appellants could not be treated as having been granted leave or as having accrued lawful residence when they had not. The alleged injustice therefore could not make removal disproportionate under Article 8. Any procedural error was immaterial.
4. The Court did not decide whether the allegation was a new matter under section 85 of the Nationality, Immigration and Asylum Act 2002, nor the questions concerning res judicata or departure from earlier factual findings. The Court doubted that Ladd v Marshall applied to written submissions and authorities lodged after a hearing where the tribunal had expressly permitted their filing. The submissions should nevertheless have been drawn to the First-tier Tribunal judge, who should have decided whether to admit them late. That guidance was not material to the disposition.

• Court of Appeal (Civil Division): In [2022] EWCA Civ 310, the appeal was dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Rimington dismissed the appellants’ appeals, holding that any procedural error was immaterial and treating the historical-injustice allegation as a possible new matter.
• First-tier Tribunal: The appellants’ Article 8 appeals were determined on 7 January 2020 without consideration of the written submissions concerning alleged historical injustice.