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

The Court of Appeal dismissed the appellants' challenge to the Upper Tribunal's dismissal of their appeal, concluding that any procedural irregularity by the First-tier Tribunal in failing to consider late-written submissions was immaterial. The submissions had sought to characterise an earlier lawful refusal of Tier 1 (Entrepreneur) leave in 2015 as an historic injustice, but the court held there was no basis on the law and facts for such a finding because the earlier decision had been made in accordance with the rules then in force (including restrictions under section 85/85A of the Nationality, Immigration and Asylum Act 2002). The court therefore found that even if the late submissions had been considered, they could not have changed the outcome on the appellants' Article 8 human rights claim.

This appeal arises from an appeal to the Upper Tribunal against the First-tier Tribunal's dismissal of the appellants' human rights (Article 8) appeal against the refusal of leave to remain. The appellants argued that the First-tier Tribunal ignored written submissions filed after the hearing which alleged an historic injustice in relation to an earlier 2015 refusal of Tier 1 (Entrepreneur) leave.

• Nature of the claim: the appellants sought review of the First-tier Tribunal's decision on their Article 8 human rights appeal and contended that the tribunal's failure to consider post-hearing submissions deprived them of the chance to rely on an alleged historic injustice arising from a prior immigration decision, which they said was material to proportionality.
• Procedural posture: the earlier Tier 1 application (2014) had been refused in January 2015; an appeal was dismissed and further permission to appeal was refused such that the appellants became unlawful migrants from April 2017. The subsequent out-of-rules Article 8 applications were refused in July 2019; a First-tier Tribunal hearing followed on 9 December 2019 at which permission was given to file written submissions within seven days on the historic-injustice point, but those submissions were filed late and were not considered by the First-tier Tribunal; the appellants appealed to the Upper Tribunal which dismissed their appeal; the present appeal is from that Upper Tribunal decision.
• Issues considered by the court: (i) whether the First-tier Tribunal's failure to consider the late submissions was a material procedural irregularity; (ii) whether the circumstances of the earlier 2015 refusal could amount to an historic injustice; (iii) related questions about the meaning and scope of section 85 of the 2002 Act, the applicability of Ladd v Marshall to post-hearing written submissions, and the effect of earlier final decisions on later appeals.
• Reasoning and outcome: the Court of Appeal held there was no conceivable basis for treating the 2015 refusal as an historic injustice because it had been decided in accordance with the law and rules then in force; therefore any failure to consider the late submissions could not have affected the Article 8 proportionality outcome and was immaterial. The court did not need to decide the s.85 question or other subsidiary legal points and expressed doubt about the application of Ladd v Marshall to tribunal-ordered post-hearing submissions. The appeal was dismissed.

This is an appeal and it is dismissed. The Court of Appeal held that even if the First-tier Tribunal had mistakenly failed to consider late written submissions alleging an historic injustice, that error was not material because the earlier refusal of Tier 1 (Entrepreneur) leave had been made and sustained in accordance with the rules and law then in force and could not reasonably be recast as an historic injustice capable of affecting the Article 8 proportionality assessment in 2019.

Appeal from the Upper Tribunal (Immigration and Asylum Chamber) which had dismissed the appellants' appeal against the First-tier Tribunal's decision. The underlying sequence: refusal of a Tier 1 (Entrepreneur) application (29 January 2015); First-tier Tribunal dismissed the 2015 appeal (decision dated 21 August 2015); permission to appeal further was refused, an application for permission to apply for judicial review was refused by the High Court, and the Court of Appeal refused leave to appeal on 26 April 2017. The present judgment is from the Court of Appeal: [2022] EWCA Civ 310.