Ansar Waseem, R (on the application of) v The Secretary of State for the Home Department [2021] UKUT 146 (IAC)

[2021] UKUT 00146 (IAC)
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Venue Field House,
Breams Buildings
London, EC4A 1WR
and via Skype for Business
3 rd June 2021
Before
THE HON. MR JUSTICE LANE, PRESIDENTUPPER TRIBUNAL JUDGE KEITH
Between
THE QUEENApplicanton the application ofApplicant(1) ANSAR WASEEMApplicant(2) GAYANI ARACHCHIGE (AND ONE OTHER)ApplicantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Mr Z Jafferji and Mr A Rehman, instructed by Lawise Solicitors, for first applicantMs S Naik QC and Ms Ella Gunn, instructed by Jein Solicitors, for second applicantMr R Harland (instructed by the Government Legal Department) for respondentHearing Hearing dates: 12 th February and 30 th March 2021
J U D G M E N T
Date 2021-06-03

A. Introduction

[1]We conducted the hearings from open court at Field House, while the parties’ representatives attended via Skype for Business. The Skype link was also open to members of the public to access. We monitored the quality of the communications between the parties and us and we were satisfied overall that the parties were able to participate effectively in the hearing.[2]The applicants’ applications raised common issues relating to the respondent’s application of her long residence policy; her exercise of discretion for those applying for indefinite leave to remain, where they do not meet the long residence requirements of the Immigration Rules; the issue of proportionality, in the context of article 8 of the European Convention on Human Rights (‘ECHR’); and the respondent’s consideration of the applicants’ further submissions as fresh claims, for the purposes of paragraph 353 of the Immigration Rules.[3]As a consequence of the respondent’s refusal to treat the applicants’ further submissions as fresh claims, no statutory right of appeal arose and the challenges to the respondent’s decisions came before us as applications for judicial review. At the core of the respondent’s decisions was the common circumstance that the applicants were all ‘open-ended’ overstayers, as described by the Court of Appeal in the case of Hoque & Ors v SSHD[2020] EWCA Civ 1357; [2021] Imm AR 188 (see [9]).[4]The applicants accept that their ILR applications fell for refusal under the Immigration Rules, as now understood as a result of Hoque, but they contend that the respondent impermissibly failed to apply her own, wider policy in relation to long residence, which would otherwise result in them being granted some form of leave and so becoming ‘book-ended’ overstayers; failed to consider her residual discretion; and failed adequately to carry out a proportionality assessment for article 8 ECHR purposes. All parties accepted that it was for this Tribunal to determine the meaning of the respondent’s long residence policy.[5]A synopsis of each of the applicants’ circumstances is set out below. B. The applicants

JR/3246/2019

[6]AW is a citizen of Pakistan born on 5th May 1979. He arrived in the UK lawfully with permission to enter as a student on 19th April 2009, with leave to remain until 30th July 2012. Prior to expiry of that leave, he made an in-time application on 27th January 2012 for leave to remain as a tier 1 post-study migrant and was granted further leave on 10th May 2012 until 12th May 2014. On that date, he submitted a further in-time application, for further leave to remain as a tier 1 entrepreneur and his leave was granted until 24th June 2017. That was the last date on which he had leave, other than as extended by section 3C of the Immigration Act 1971 (which broadly speaking extends the leave last granted until a decision is taken on the appeal for further leave; or until any appeal rights have been exhausted).[7]On 22nd June 2017, AW applied for ILR on the basis of long residence, (10 years’ continuous lawful residence), despite having been in the UK for a little over eight years only. The respondent refused this application on 25th November 2017 and AW appealed that decision to the First-tier Tribunal. AW did not attend that First-tier Tribunal hearing and the First-tier Tribunal dismissed AW’s appeal on 30th August 2018. AW sought permission to appeal to this Tribunal. Permission was refused by the First-tier Tribunal on 2nd November 2018 and by this Tribunal on 31st January 2019, when his appeal rights were exhausted.[8]On 4th February 2019 (so within 14 days of his appeal rights being exhausted, on which AW places significance), AW applied again for ILR on the basis of long residence. The crux of AW’s case is that he says that by 21st March 2019, taking into account the ability to apply 28 days before a required residence period is met, he had lived in the UK for ten years, and the respondent only reached her decision after that date on 20th April 2019. The respondent characterises 10 years’ residence in the UK as a “place marker”, without legal significance, as AW had been an overstayer, without any existing leave, since 31st January 2019, and so a longer period of residence would be required for some form of leave based on long residence, namely 20 years.[9]The respondent refused to treat AW’s application as a fresh claim in the decision dated 20th April 2019. Following pre-action correspondence, AW applied for judicial review on 14th June 2019.

JR/1043/2019

[10]GA, the lead applicant in the second application, was born on 17th December 1974. Her husband, UM, who is dependent on her application, was born on 17th March 1964. Both are Sri Lankan nationals and entered the UK lawfully, pursuant to GA’s student visa, on 20th September 2003. They obtained extensions of leave to remain and GA then applied on 29th October 2007 for a further extension, to undertake a PhD. That application was refused. GA appealed against that refusal to the Asylum and Immigration Tribunal. The AIT dismissed her appeal on 12th February 2008 and GA’s appeal rights were exhausted on 6th March 2008. GA and UM remained in the UK as overstayers. UM then left on 20th April 2008 and GA left on 28th April 2008. GA then applied for a further student visa on 29th May 2008, which was granted and valid from 3rd July 2008.[11]GA re-entered the UK on 6th July 2008 and UM re-entered on 10th August 2008. They have remained in the UK ever since. GA then extended her leave to remain as a student, which expired on 30th October 2015, and that was the last time on which GA had leave to remain, other than by reason of section 3C. Two days before the expiry of her last period of leave, on 28th October 2015, she made an-in time application for ILR based on 10 years’ continuous lawful residence, referring to her residence from 20th September 2003 until 21st September 2013.[12]The respondent refused GA’s application on 7th March 2016. GA then appealed that decision and her appeal was dismissed by the First-tier Tribunal on 5th April 2017. She sought permission to appeal that decision. The First-tier Tribunal refused permission on 3rd January 2018 and the Upper Tribunal refused permission on 9th May 2018, when GA’s appeal rights were exhausted.[13]Within 14 days of the exhaustion of their appeal rights (on which, like AW, GA places importance), on 17th May 2018, GA and UM applied for further leave to remain based on their rights to respect for their private life, by reference to article 8. Before their applications were decided, they varied their applications, seeking ILR based on 10 years’ continuous lawful residence, since GA’s re-entry to the UK on 3rd July 2008. The respondent also regarded this purported anniversary as being without legal significance, as GA’s and UM’s leave had ended on 9th May 2018, even when extended by section 3C. The respondent refused to treat the applications as fresh claims, in decisions of 13th December 2018 and 18th January 2019.

C. Procedural history, grounds and defence

[14]Following pre-action correspondence, GA and UM applied for judicial review on 22nd February 2019. Permission was refused by Upper Tribunal Judge Kebede on the papers in a decision of 20th May 2019. AW applied for judicial review on 14th June 2019 and permission in respect of his application was refused on the papers by Upper Tribunal Judge Pickup on 18th July 2019.[15]Following further case management directions, which are not recited here, at an oral permission hearing on 12th March 2020, Upper Tribunal Judges Allen and Finch granted permission on the following grounds:
“1. Permission is granted in respect of the arguable failure by the respondent to consider and apply the relevant sections of her policy on long residence to the facts of the case. 2. Permission is granted in respect of the arguable unlawfulness of the paragraph 353 decision. 3. Permissionis granted in respect of the arguable lawfulness of the article 8 evaluation.”
[16]A ground asserting that the applicants met the requirements of the Immigration Rules was refused. Directions were given, on the grant of permission, to serve amended grounds. Upper Tribunal Judge Mandalia refused permission on 10th June 2020 in respect of an application to add a ground to JR/3246/2019. In further directions issued by Upper Tribunal Judge Gleeson on 15th September 2020, the applications were initially stayed pending the Court of Appeal’s decision in R (Arif) v Upper Tribunal C4/2020/0287. Following these directions, AW and GA served separate amended grounds on 5th November 2020. Judge Gleeson issued additional directions on 7th January 2021, delinking a third, previously linked application of R (Kabir) v SSHD (JR/3972/3019). The stay was later lifted and the remaining two linked applications came before us.

AW’s amended grounds

[17]The amended grounds focussed on the three permitted grounds, with a fourth, new challenge, to which the respondent objected.[18]The first ground was the challenge that the respondent had failed to consider and apply her own long residence policy, when assessing AW’s application for ILR, in particular, the continuous lawful residence requirement. The respondent had erroneously limited her assessment of the application to paragraph 276B of the Rules and had failed to consider, either adequately, or at all, paragraph 39E; its conflict with, or different direction compared to paragraph 276B; and the respondent’s wider policy guidance and greater flexibility in respect of overstaying and long residence which made allowance for periods of overstaying, if applications were made within specified short ‘grace’ periods. Developing that ground further, the long residence rule had always contained a strict requirement of continuous lawful residence, but after its introduction, there had been a parallel long residence concession, allowing the respondent to disregard certain gaps in lawful residence. The long residence concession had been imported into the Rules in 2003 in order to allow for a right of appeal.[19]While the respondent’s earlier policy guidance contained only limited discretion to grant applications where there were gaps in lawful residence, the scope of the discretion grew over time. By April 2009, there was already some limited discretion, usually for single short gaps of lawful residence of not more than 10 calendar days. This reflected the purpose of the long residence concession, which was to recognise where someone had shown the ‘necessary commitment to ensuring they have maintained lawful leave throughout their time in the UK’.[20]There was a difference between the respondent’s overall immigration policy on overstaying; her specific policy guidance; and the specific, more limited provisions of the Rules.[21]In respect of the respondent’s asserted failure to comply with her own policy guidance, AW relied upon the applicable version 15.0. The grounds set out where the policy allowed the respondent to grant leave where applicants did not satisfy the strict requirements of continuous lawful residence, including granting those with temporary admission; in relation to early applications; the ability to go beyond ‘grace periods’ provided in the Rules; and in particular, the respondent’s discretion to depart from the requirement of ten years’ continuous lawful residence where a statutory appeal was ultimately successful. In contrast, in refusing AW’s application, the respondent did not exercise any discretion at all and merely referred to the lack of continuous lawful residence.[22]Passing over the second ground for a moment, in relation to the third ground, the respondent had failed to consider the quality of AW’s private life established in the UK for the purposes of article 8. The respondent should have recognised that the requirements of paragraph 276B were far narrower, and could not encompass, an article 8 claim. AW raised a human rights claim in his ILR application. The fact that he could not satisfy the requirements of the Rules for ILR was not determinative of his article 8 claim. Instead, in the impugned decision, in a section dealing with the consideration of ‘exceptional circumstances’, the respondent had referred to the fact that even if his removal from the UK would not be a breach of his ECHR rights, she had gone on to consider exceptional circumstances. By jumping to a consideration of exceptional circumstances, the respondent had failed to consider that there might be a breach of AW’s article 8 rights.[23]The respondent should not have relied merely upon narrow applicable provisions in the Rules as fully reflecting her own wider immigration policy, which in turn had an impact upon the weight which could be attached to the maintenance of effective immigration control in the article 8 proportionality assessment. There was no rational reason why a person who had overstayed within the time limits specified in paragraph 39E of the Rules should be treated less favourably than a person resident in the UK on temporary admission.[24]AW further argued (although the respondent characterised this as a new ground, and we agree that it is) that the respondent’s policy, in focussing on paragraph 276B, lacked “accessibility and foreseeability” when read in the context of the respondent’s wider immigration policy, as reflected in paragraph 39E. There was an ambiguity in the claimed purpose of the eligibility provisions of the Rules. They had been described as seriously problematic and ambiguous. Moreover, the policy was clearly more generous than the Immigration Rules, however they were interpreted. The rule of law required that the scope of any discretion be defined with a sufficient degree of specificity to avoid being used arbitrarily.[25]Both of these grounds fed into the second ground, which was the respondent’s error in refusing to treat AW’s renewed ILR application as having a realistic prospect of success, so as to meet the criteria of a fresh claim for the purposes of paragraph 353.

GA’s amended grounds

[26]GA’s amended grounds substantially replicated AW’s challenges. GA added, in terms of her personal circumstances, that her application of 9th June 2018 was not simply a repeat application, but related to a different time period from her earlier application for ILR. If weight were properly attached to her 10 years’ residence (with longer periods of residence prior to that) up to June 2018, the respondent’s rationale for treating the application as having no realistic prospect of success was unsustainable, even if GA did not meet the strict requirements of paragraph 276B. Central to the realistic prospect of success (as per the well-known authority of WM (DRC) v SSHD[2006] EWCA Civ 1495; [2007] Imm AR 337) was GA’s article 8 claim, which was significantly different from the previous application for ILR because she had been continuously resident for ten years, which brought her within the scope of the respondent’s long residence policy.[27]The respondent had failed to consider properly her exercise of discretion under section 3 of the 1971 Act. GA had only overstayed by eight days and had completed nine years and 10 months’ lawful residence by the date of her application; 10 years and six months’ residence by the date of the impugned decision; and had lived in the UK for 16 years in total, with leave for over 14 years, except for a period of four months in 2008.[28]The respondent had instead limited her assessment to paragraph 276B, not considering paragraph 39E and the wider policy guidance in respect of overstaying. There was ambiguity in the claimed purpose of the Rules, as reflected in cases such as Hoque. Any ambiguity weakened the public interest in the maintenance of effective immigration controls. Regardless of any ambiguity in its purpose, the respondent clearly operated a policy that was more generous than the Rules and she had wide residual discretion, which she ought to have considered, at least in respect of granting limited leave, as opposed to no leave at all.[29]GA repeated AW’s criticism that the respondent had also failed to consider adequately whether refusal of leave would breach her article 8 rights. The respondent had instead relied upon GA not meeting the requirement of paragraph 276B, without considering her wider policy and residual discretion when conducting (as she ought to have conducted) a proper ‘balance sheet’ assessment of proportionality. By way of example, the respondent’s own policy guidance had urged decision-makers to consider an applicant’s family life in the UK; their investment in business or property; and their positive contributions to UK society.

Orders sought in the grounds

[30]The applicants sought orders quashing the decisions refusing to treat their applications as fresh claims; declarations that the respondent’s long residence policy was insufficiently clear to be applied lawfully, including in a manner consistent with article 8; and mandatory orders requiring the respondent to reconsider her decisions to refuse to treat their applications as fresh claims.

The respondent’s amended grounds of defence

[31]Following the submission of Acknowledgements of Service; the partial grants of permission; and the orders for amended grounds, on 18th November 2020, the respondent served amended detailed grounds of defence.[32]The respondent first took issue with the new ground, namely the ‘lack of accessibility’ or ‘foreseeability’ in relation to the respondent’s long residence policy. It was without permission or merit.[33]The broad thrust of the respondent’s detailed grounds, which are lengthy and so we do no more than summarise here, was that the applicants’ applications for ILR had been correctly refused under paragraph 276B and the respondent’s policy. The policy set out some situations and exceptions where case workers could exercise discretion beyond the Rules, but the applicants were unable to identify how any of those exceptions applied to them. Their applications had stood or fell to be refused based on their long residence, as the only basis of their further submissions was the weight they themselves applied to long residence. Given the narrowness of their applications, there was no reason to grant leave, nor any freestanding article 8 claim of any residual merit. The decisions to refuse to treat the applicants’ applications as fresh claims under paragraph 353 were, in that context, unarguably lawful.[34]The respondent noted that Judge Gleeson had previously adjourned consideration of these applications so that the parties could await the conclusion of the Court of Appeal in Hoque. In any event, the Court of Appeal’s decision provided further support to the respondent, not the applicants.[35]At the previous hearing before Judge Gleeson, there was discussion, in the context of directions, about what part of the Rules or the respondent’s policy the applicants claimed to have the benefit of. This had remained unresolved and the applicants had never been able to identify which part of the wider policy they benefitted from, because again, in reality, they could not.[36]Turning to the applicants’ individual chronologies, they had applied for ILR on the basis of lawful long residence and in neither case did the applicants have the required lawful long residence at the time of their applications. AW was approximately three months short of the 10 years’ continuous lawful residence requirement when he became an overstayer on 31st January 2019. GA was two months short after she became an overstayer on 9th May 2018. Whilst the applicants asserted that their failure to reach the required period of continuous lawful residence could be overlooked by virtue of a discretion contained in the long residence policy, in fact they were unable to point to which part of the policy would benefit them.[37]In relation to a challenge under the Rules, permission had been refused on this ground and in any event was ruled out because of the Court of Appeal’s decision in Hoque, which confirmed that paragraph 276B permitted ‘book-ended’ overstaying, that is, gaps of previous overstaying between periods of lawful leave, as counting towards long residence, but not ‘open-ended’ overstaying i.e. current overstaying which has not been closed off by a grant of leave.[38]The respondent pointed out that every visitor met the requirement of being in the UK lawfully, but this would not entitle every visitor to ILR. Lawful presence was distinct from a requirement of lawful residence for a specified period, which if met, allowed someone to ‘bank’ and apply for ILR at some stage in the future, even if they were currently unable to do so because of a current lack of lawful presence. The applicants fell into the first category. Their applications did not fail because they were in the UK unlawfully – they failed because they did not have the required period of continuous lawful residence.[39]In relation to the respondent’s policy guidance, Lord Reed JSC had confirmed at [4] of Agyarko v SSHD[2017] UKSC 11; [2017] Imm AR 764 that the respondent has a discretionary power under the 1971 Act. However, he also recognised at [7] the increasing emphasis on certainty rather than discretion, and predictability rather than flexibility. It was good practice for the respondent to publish its policy and to stick to it; unless there were uniformly applied practices, decisions could be inconsistent and arbitrary. Since the guidance might set out how the respondent intended to exercise her residual discretion, it could be a source of policy more generous than the Rules and the respondent could state that she would adopt a more lenient interpretation of the Rules (see [42] to [43] of Pokhriyal v SSHD[2013] EWCA Civ 1568; [2014] Imm AR 711). However, there was no difference between paragraph 276B and the respondent’s policy as applied to the applicants, as paragraph 276B was understood in Hoque.[40]The appropriate approach was for the Upper Tribunal to assess the meaning of the policy and to see the extent to which the applicants fell within it, as per [31] of Mandalia v SSHD[2015] UKSC 59; [2016] Imm AR 180.[41]While the respondent had provided guidance on long residence to case workers from time to time, the respondent’s discretion was not, as the applicants contended, wide or so vague as to risk irrational application. In fact, the guidance to caseworkers circumscribed that discretion, with specific exceptions and examples. Historically, caseworkers had typically been able to exercise discretion where there were short gaps in lawful residence, as per the long residence concession. The relevant guidance for present purposes was the long residence guidance, version 15.0, published on 3rd April 2017, which dealt with ‘breaks’ in lawful residence and ‘gaps’. The guidance was clear, in using such terminology, that such ‘gaps’ related short periods of overstaying between periods of grants of leave. None of the applicants had subsequent grants of leave and instead were simply people who had not accumulated 10 years’ continuous lawful residence. The applicants were attempting to conflate their circumstances, by comparing themselves with those who had met the residence requirement, but were currently overstayers when they applied for ILR, and so satisfied paragraph 276B(i)(a), but contravened paragraph 276B(v), which the guidance dealt with.[42]The applicants’ attempts to conflate their circumstances with those who benefitted from exceptions within the policy were not limited to paragraph 39E. They also sought to compare themselves to those who were within 28 days of completing the required qualifying period at the time of their application, namely those benefitting from the early application exception. None of the applicants fell within that exception, as none had made their applications within 28 days of completing the lawful residence requirement.[43]AW also sought to compare himself with those on temporary admission, as it then existed. The respondent was entitled to distinguish between overstayers and those on temporary admission, but in any event, they were not treated differently. A person with temporary admission still needed to meet the long residence requirement. While periods spent in the UK with temporary admission could potentially count, they could only do so where there was a later grant of ‘book-ended’ leave on other grounds. If there were no such later grant, a person with temporary admission would still fail because of a lack of qualifying lawful residence.[44]Finally, the applicants tried to compare themselves with those who had spent time outside the UK, but where that absence did not break continuous residence, provided that they had leave on exiting and re-entering the UK and the gap was for a limited period. Once again, none of the applicants fell into this category (GA had been an overstayer when she left the UK in 2008 and had not applied for entry clearance within 28 days of the expiry of her leave).[45]The obvious rationale underlying the policy guidance was to differentiate between ‘open-ended’ and ‘book-ended’ overstayers. Were time spent in the UK pursuant to repeatedly unfounded applications, so long as each new application came ‘hot on the heels’ of the refusal of its predecessor, to count towards 10 years’ continuous lawful residence, it would inevitably lead to abuses, as recognised by both Underhill and Dingemans LJJ at paragraphs [50] and [104] of Hoque. The applicants’ reliance on different circumstances where exceptions were made did not assist them, as those exceptions reflected the circumscribed nature of the discretion. The Court of Appeal in Hoque observed their construction of paragraph 276B accorded with the respondent’s guidance and practice (see paragraphs [38] and [104]), namely the same distinction was made in the policy, as in the Rules, between ‘book-ended’ and ‘open-ended’ overstayers.[46]In summary, the applicants’ first ground of challenge was answered by the absence of any sections of the respondent’s policy or guidance which allowed case workers a discretion to grant leave on the facts of the applicants’ cases. None had set out with any specificity the section of the policy guidance that applied to them.[47]AW had applied on the basis of long residence, rather than outside the Rules. He did not purport to be making an early application. The application was made prior to 28 days before attaining 10 years’ lawful residence and in that respect, the policy mandated refusal.[48]GA had applied on 17th May 2018 for limited further leave to remain, which she subsequently varied, but she had never explained how, even with the benefit of the early application exception, section 3C leave extended from 17th May 2018 to 9th June 2018 (the 10-year anniversary), after her appeal rights had been exhausted.[49]Their applications failed under the policy for the same reasons as they failed under the Rules, namely they were ‘open-ended’ overstayers who did not meet the 10 year period of continuous lawful residence.[50]Dealing with the second and third grounds together (article 8 and paragraph 353), the weakness of the article 8 claims reflected the fact that none of the applicants claimed to meet the Rules either in respect of Appendix FM for family life, or paragraph 276ADE in respect of private life. The applicants appeared to be pursuing ‘near miss’ long residence claims. While there might be some weight attached to a ‘near miss’ in relation to the Rules, it depended on the rule in question. The long residence provisions were not coterminous with article 8 rights. The fact that an applicant only nearly missed the ’10-year’ rule did not mean that their application would or should succeed under article 8. This was true of Mr Hoque and Mr Kabir in the Hoque case. Mr Mubarak fell only two months short and his claim was still bound to fail (paragraphs [140] to [141]).[51]In the applicants’ cases, none had established family life in the UK; the existence of each in the UK was precarious; and a substantial period of their presence was only with section 3C leave. None pointed to the particular development of private life which would make their cases exceptional. All had had appeals rejected by First-tier Tribunals: AW, on 16th August 2018; GA, on 31st March 2017. Their renewed applications were made only a brief period of time afterwards. The only ‘new’ matter was a place marker, which had no legal significance, of 10 years’ presence in the UK. Each application was no different to the previous claim which had recently been rejected by the First-tier Tribunal, and the further application was similarly bound to fail on an article 8 analysis and so had no realistic prospect of success.[52]In respect of any argument about lack of accessibility and foreseeability, first, no permission had been given for this ground. Second, the premise that the policy was unclear, as it applied to the applicants, was incorrect. The policy was very clear. That was supported by the Court’s decision in Hoque that its understanding of the Rules was consistent with the application of the policy. There was, in the Court’s view, no ambiguity when it came to overstayers like the applicants (see paragraph [43] of Hoque). ‘Book-ended’ overstayers could succeed under both the Rules and the policy, while the applicants, as ‘open-ended’ overstayers, failed under both.[53]Third, the applicants could not point to any ambiguity in the policy that assisted them and instead complained that they ought to come within exceptions, because their circumstances were of comparable merit. The applicants’ circumstances were not comparable, because they were all currently overstayers, with no reason to remain in the UK.[54]Even if the premise were correct that the policy was not clear, there was no evidence that the policy could not be lawfully applied in respect of article 8 or that the decisions were otherwise unlawful because they were not ‘foreseeable’ or ‘accessible’. The policy covered applications for ILR only and had to be read holistically with other paragraphs of the Rules and the respondent’s policies. The respondent did not suggest that her residual discretion was unduly fettered by the terms of the Rules or policies and the applicants had not begun to show that the policy, as applied, was incapable of protecting their human rights. By analogy to the Supreme Court’s decision of R (Bibi) v SSHD[2015] UKSC 68; [2016] Imm AR 270, in relation to whether a rule was unlawful, the applicants had not shown (nor could they show) that the policy could not be operated in a proportionate way or a way that was so inherently unjustified in all or nearly all cases. Whilst there remained a residual discretion outside the policy, as confirmed in the case of R (Ahmed) v SSHD (paragraph 276B – ten years lawful residence)[2019] UKUT 00010 (IAC), the extent of the residual discretion should not be overstated nor should the respondent be criticised for not expressly having regard to it. None of the applicants had raised any reference to residual discretion in their applications, nor did they make a specific application on that basis. In reality, there was nothing exceptional about their cases, which placed sole reliance on the place marker of 10 years’ residence, but not continuous lawful residence. D. The hearing before us

The applications to adduce new evidence

[55]On 11th February 2021, the day before the first day of the hearing, the applicants applied for permission to rely upon additional evidence. The additional evidence comprised witness statements of five solicitors representing third parties; emails between the AW’s solicitors and the Government Legal Department from 1st to 11th February 2021, in which it was said that the applicants had sought further information from the respondent about decisions in relation to third party applicants; and a redacted decision of the respondent in a third party case. The gist of the evidence was that in at least a number of cases identified by the applicants (around 20), ‘open-ended’ overstayers had been granted leave to remain and this supported the applicants’ construction of the policy. It was not argued that an unpublished policy was being applied.[56]In justifying the lateness of the application, Mr Jafferji pointed out that Judge Gleeson had given no specific direction as to any application for additional evidence (so no deadline had been broken) and the evidence had been collated only very recently with correspondence between the Government Legal Department and the applicants beginning on 1st February 2021. It was only around the end of January 2021 that the applicants’ solicitors had become aware, through networks of third party solicitors, about some decisions having been granted in favour of ‘open-ended’ overstayers. As a consequence, the applicants had sought further information from the respondent. In response, the respondent had provided no witness statement and the GLD had stated on 4th February 2021 that it had no knowledge of any other practice to grant ILR to ‘open-ended’ overstayers, and if the applicants had evidence, they should provide it. The applicants had then begun a difficult process of obtaining evidence from third parties, a number of whom were nervous because of fear that any grant of leave would be retracted. There had been no breach of case management directions. There was a good reason for late disclosure. The respondent had been invited to give evidence and was under a duty of candour. Therefore the evidence should be admitted as it supported the applicants’ construction of the guidance and was relevant to its exercise of discretion that there was no consistent policy being applied, and instead evidence of a dysfunctional policy, as supported by the view of Dingemans LJ at [105] of Hoque.[57]In response, Mr Harland raised four points: first, the lateness of the application; second, how this fitted in with the grant of permission in terms of the case; third, the prejudice to the respondent; and fourth, the impact on proceedings.[58]First, the application was manifestly late. Judge Gleeson had directed on 15th September 2020 that a consolidated bundle be filed not later than 21 days before the hearing and no further documents or evidence would be accepted thereafter without the leave of the Upper Tribunal. This was a long running judicial review application with re-amended grounds and two skeleton arguments. It was common sense that the application was made late (only the day before the hearing). The reasons given for the lateness of the application were unsustainable. Whilst the applicants had claimed only to have just become aware of other cases, there was no detail about what enquiries had been made before, or what earlier steps had been taken, in a timely fashion. Was it really the applicants’ case that the possibility of inconsistent decisions had only just occurred to them?[59]Second, the disclosure did not appear to be relevant to the permitted grounds. Ground (1) was an arguable failure to consider and apply relevant sections of the respondent’s policy. There was no permission granted to argue that the policy had been applied inconsistently. That would have required a further amendment to the grounds.[60]Third, in terms of prejudice, on the one hand, the evidence may in fact be of very little import. Various solicitors had expressed experience of grants to ‘open-ended’ overstayers, but without detail of the underlying decision. Taken even at its highest, the evidence referred to around 20 grants having been made to ‘open-ended’ overstayers or there being decisions of the First-tier Tribunal in favour of such applicants. There was no evidence that these were more than isolated cases. It was not appropriate for us to take into account unreported decisions of the First-tier Tribunal. There might be some case workers who applied the policy incorrectly, or not at all, but it was for this Tribunal to understand and determine the meaning of the respondent’s policy.[61]On the other hand, the prejudice to the respondent was that there was no opportunity to review the relevant circumstances of the cases; cross-examine the representatives who provided these statements; or point out where the analysis was wrong. It was impossible for the respondent to put together a response in relation to those statements. On the applicants’ question in correspondence of February 2021, of how many grants of leave had been given to ‘open-ended’ overstayers, there was no way of addressing that except by going through each and every file, which would be an enormous exercise in a tiny timeframe.[62]Fourth, it could not be right to adjourn the hearing of this long-running application again.[63]In response, for the applicants, Ms Naik QC added that there was a duty of candour and the respondent was obliged to show the full picture. It could perhaps be dealt with by way of submissions after the hearing, but Mr Harland was without instructions on such next steps.[64]We concluded that it was appropriate to admit the new evidence, but its relevance should be limited to the interpretation of the policy, i.e. the first ground that was permitted to proceed. Our decision to admit new evidence was a finely balanced one. We regarded the application as late and without satisfactory explanation of the timeliness of earlier enquiries. On the other hand, we accepted that such evidence could potentially be relevant to the pleaded first ground, but the prejudice to the respondent was mitigated by admitting it only by reference to that permitted ground (as to which the applicants made no objection) and by allowing the parties do deal with the evidence by way of written submissions.[65]Having agreed to admit the evidence, Mr Harland indicated that he was content to proceed without an adjournment, but said that there may need to be an application for permission to respond with the respondent’s own statement on the narrow issue to which the new evidence related and the specific, third-party decision relied on.[66]As it happened, the hearing then went part-heard (it was only originally listed for a day), with the adjourned hearing relisted for 30th March 2021.[67]The respondent herself made a late application on 29th March 2021, to adduce her own witness statement, as to which there was no objection by the applicants. The witness statement was of a Senior Executive Officer of the respondent, Richard Holmes, with supporting exhibits. We also admitted that evidence, which we have considered in our discussion below. Mr Holmes did not attend the Tribunal to give oral evidence.

The applicants’ combined written submissions

[68]We considered the applicants’ combined written submissions dated 28th January 2021. While we do no more than summarise the submissions, we have considered them in full.[69]The applicants acknowledged the Court of Appeal’s decision in Hoque, which confirmed that ‘open-ended’ overstayers could not succeed under paragraph 276B, but the Court had not considered in detail the respondent’s policy guidance. That policy was central to the applicants’ claims, so no real, or very limited assistance could be derived from the Court of Appeal’s decision. In any event, the Court of Appeal’s decision was a split judgment and the Court was unanimous in its criticism of the respondent’s own understanding of the Rules and immigration policy.[70]In those circumstances, the policy needed to be read with great circumspection, particularly in the absence of a witness statement adduced by the respondent setting out the policy background or other considerations in applying the policy. Adverse inferences could be drawn from the absence of such a witness statement (see the authority of R (Das) v SSHD[2014] EWCA Civ 45, at [80]).[71]The relevance of Hoque was also limited, as Underhill LJ had expressly stated at paragraph [3], that the article 8 issues were case-specific and did not themselves raise any issue of principle.[72]In relation to the first ground, namely the respondent’s arguable failure to consider and apply the relevant sections of her policy on long residence to the facts of the case, the Rules had to be considered as a coherent scheme, rather than in isolation and the context of the introduction of paragraph 39E on 3rd November 2016, as explained in the explanatory memorandum to the Statement of Changes in the Immigration Rules (HC 667), at [7.49], was for “reasons of fairness”. Where an individual fulfilled the requirements of the discrete scenarios provided for in paragraph 39E, they would not be seen as being in breach of immigration control. A period of overstaying was one that could be disregarded or overlooked.[73]The background to paragraph 276B was the earlier long residence concession, based on the European Convention on Establishment, which itself was based on the ECHR. While therefore ultimately arising from the ECHR, the focus of the concession and later the Rule, was the length of lawful residence, with no other factors such as the quality of residence and the extent of private and family life established in the UK being relevant. While arising out of the ECHR, applying the long residence rule was a very different matter to considering article 8.[74]While there were apparently strict requirements in the long residence rule prior to changes brought into effect on 1st October 2012 requiring continuous lawful residence, which would mean that even if there were one day of overstaying due to ill-health or other matters beyond an individual’s control, their application for long residence would be unsuccessful, increasing discretion was introduced over time. For example, limited discretion was introduced in April 2009, allowing single short gaps to be disregarded. The respondent’s guidance in version 15.0 (2017) was now much broader, going beyond paragraph 39E and its predecessor provision, to include many examples, which were just that – examples, which did not define the scope of the policy but merely illustrated its application. They included examples of early applications and those with temporary admission. The policy reflected what was stated in the long residence concession – the recognition of an applicant having “shown the necessary commitment to ensuring that they have maintained lawful leave throughout their time in the UK.” There was a significant difference between the overall immigration policy on overstaying, as reflected at paragraph 39E; the specific policy with regard to long residence; and the specific provisions of the Rules.[75]Neither GA’s nor AW’s applications were appropriately considered. The respondent had not considered the exercise of discretion at all. Instead, the respondent relied on the circular reasoning that as GA and AW had not satisfied paragraph 276B, an exercise of discretion was not appropriate.[76]Proportionality was said to be relevant to the first and second grounds of the permission application. In relation to the first ground, when applying her policy, the respondent ought to have recognised that after a certain period of continuous lawful residence, people should not be required to leave the UK. This was a broader policy discretion, in addition to the human rights framework of article 8. The degree of weight given to the assessment of a primary decision-maker depended on the context, (see [69] of Bank Mellat v Her Majesty’s Treasury[2014] AC 700), but we should go beyond a ‘range of reasonable responses’ review, to consider the aim of the respondent’s policy and whether the refusal of leave was disproportionate, striking a ‘fair balance’ as per [74] of Bank Mellat. The respondent had failed to apply her mind to the proportionality of refusing leave in the broader policy discretion sense, for example in failing to distinguish the applicants as lawful migrants to the UK who properly made in-time, paid applications, with periods of lawful leave, from others such as those involved in deception.[77]The applicants accepted that it was open to the respondent to apply a longer 20 year rule under paragraph 276ADE where an applicant did not meet the requirement of paragraph 276B, but this could not absolve the respondent of her responsibility to consider properly where applicants were lawfully present and had made proper applications for leave to remain and would not have breached the Rules save for where the respondent herself would otherwise disregard such breaches. Adopting the ‘fair balance’ review enjoined in Bank Mallet, there was a difference between whether a particular objective was, in principle, sufficiently important to justify limiting a particular right and whether in fact it constituted a fair balance. The respondent had failed to consider the fair balance.[78]The respondent’s application of her policy could also be considered through the framework of a ‘rationality review’, described most recently in R (Pantellerisco) v SSWP[2020] EWHC 1944 (Admin), at [47] to [50], which encompassed an assessment of the comparative disadvantages of the various options open to the respondent, the reasons for the course taken and whether that course struck a ‘reasonable balance’. The question here was whether, notwithstanding the applicants not meeting the requirements of paragraph 276B, the applicants ought to have had discretion exercised in their favour.[79]In relation to the second ground, the applications had also raised human rights claims under article 8. The respondent’s consideration of the applications outside the Rules had failed to apply the requisite structured approach to article 8 mandated by the Court of Appeal and endorsed by the Supreme Court in R (Aguilar Quila) v SSHD (AIRE Centre intervening)[2012] 1 AC 621; [2012] Imm AR 135 and Bank Mellat. There was no assessment of the strength of the public interest, and where the fair balance of competing interests lay. The assessment of a fair balance required consideration of the respondent’s long residence policy, which was not considered or applied at all, and the applicants’ adherence to the respondent’s wider immigration policy during the course of their stay in the UK, namely their attempts to maintain lawful status.[80]The respondent had not given consideration to the weight to be attached to the policy. Instead, she had erred in relying narrowly on paragraph 276B, where this pulled in a different direction from paragraph 39E and there was a wider policy still, beyond the Rules. If the applicants in fact met the respondent’s wider policy, as correctly understood, the respondent would not be able to point to the importance of maintaining effective immigration controls as a factor weighing in favour of the respondent (see the recent Upper Tribunal decision of OA (Human Rights) v SSHD[2019] UKUT 65 (IAC); [2019] Imm AR 647).