Md Imtiaz Ahmed v Secretary of State for the Home Department

“Historical injustice” is not a freestanding legal doctrine. It describes circumstances in which past events may affect the weight given to effective immigration controls in the Article 8 proportionality assessment.

An appellant must establish a wrongful operation of immigration functions and show that he or she suffered as a result. A decision consistent with the law as understood when it was made is not wrongful merely because that law was later overturned. The appellant must also address avoidable delay and unmitigated prejudice. A failure to notify appeal rights will not establish relevant injustice where there was no arguable prospect of a successful appeal.

The appellant, a Bangladeshi national, challenged the dismissal of his Article 8 appeal. He relied principally on an alleged historical injustice arising from the respondent’s refusal in 2016 of his application for a residence card as an extended family member under the Immigration (EEA) Regulations 2006, without notifying him of a right of appeal.

The First-tier Tribunal dismissed his appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002. It found that the respondent had acted consistently with Sala (EFMs: Right of Appeal) and that the proposed appeal had no realistic prospect of success. The central issues were whether the failure to notify appeal rights constituted a wrongful operation of immigration functions and whether the appellant had suffered consequential prejudice.

1. Appeal dismissed. The First-tier Tribunal had made no material error of law, and its decision stood.
2. “Historical injustice” was an evaluative description within the Article 8 proportionality exercise, not a separate legal right. It could reduce the weight attached to the public interest in effective immigration controls under section 117B(1) of the Nationality, Immigration and Asylum Act 2002 only where the relevant past events were legally and causally connected to the claimed prejudice.
3. The respondent’s 2016 decision was consistent with the Upper Tribunal’s then-binding decision in Sala (EFMs: Right of Appeal). The later decision in Khan v Secretary of State for the Home Department did not make the respondent’s earlier conduct a wrongful operation of immigration functions. A decision made consistently with the law as understood at the time remained capable of being lawful for this purpose.
4. Even assuming a wrongful operation, the appellant had not shown that he suffered as a result. The evidence did not establish an arguable prospect that an appeal against the residence-card refusal would have succeeded. Failure to notify appeal rights therefore caused no relevant historical injustice.
5. The appellant’s failure, after Khan, to amend his judicial review challenge or seek a fresh appealable decision, absent good reason, also weakened any claim for reduced public-interest weight. Reliance on solicitors’ ignorance of the law did not normally assist, consistently with Mansur (immigration adviser's failings: Article 8) Bangladesh.
6. The validity of the 2016 notice did not need to be determined for the historical-injustice issue. Marepally v Secretary of State for the Home Department showed that a defective notice was not necessarily ineffective for all purposes, and that absence of actual injustice could justify refusing relief.

1. Upper Tribunal (Immigration and Asylum Chamber) — appeal against the First-tier Tribunal’s decision dated 3 October 2022 dismissed; the First-tier Tribunal decision stood.
2. First-tier Tribunal — appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 dismissed.