Introduction

The case of OA and Others (human rights; 'new matter'; s.120: Nigeria) ([2019] UKUT 65 (IAC)) adjudicated by the Upper Tribunal (Immigration and Asylum Chamber) on January 15, 2019, represents a pivotal moment in UK immigration law. The appellants, Nigerian nationals with differing ages, challenged the refusal of their applications to remain in the United Kingdom on human rights grounds. Central to their appeals was the assertion of ten years of continuous lawful residence, which they contended should influence the Tribunal's assessment of their cases under Article 8 of the European Convention on Human Rights (ECHR).

Summary of the Judgment

The Upper Tribunal reviewed the refusals made by the Secretary of State, which were treated as human rights claims under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002. The key issue revolved around whether the appellants' completion of ten years' continuous lawful residence constituted a "new matter" under section 85 of the 2002 Act, thereby affecting the outcome of their human rights appeals. The Tribunal concluded that the ten-year residence requirement indeed qualifies as a new matter that can materially influence the appeals. Ultimately, the Tribunal allowed the appeals of all three appellants, emphasizing that their removal would constitute a disproportionate interference with their Article 8 rights.

Analysis

Precedents Cited

The judgment extensively references prior cases and statutory provisions to establish the framework for considering "new matters" in human rights appeals. Notably:

• Mahmud (s.85 NIAA 2002 - "new matters") [2017] UKUT 488 (IAC): Affirmed that a "new matter" must constitute a ground of appeal listed in section 84 and must be factually distinct from previously considered matters.
• Charles (human rights appeal: scope) [2018] UKUT 89 (IAC): Clarified the scope of human rights appeals, emphasizing that the Tribunal's role is confined to determining the lawfulness of the decision under section 6 of the Human Rights Act 1998.
• Ahmad (Scope of Appeals) [2018] UKUT 84 (IAC) and Jaff (s120 Notice; Statement of "Additional Grounds") [2012] UKUT 396 (IAC): Discussed the procedural requirements for statements of additional grounds under section 120, highlighting the necessity of written submissions.

Legal Reasoning

The Tribunal's legal reasoning focused on interpreting section 85 of the Nationality, Immigration and Asylum Act 2002, particularly in light of the appellants' ten years of continuous lawful residence. It was established that:

• The completion of ten years' residence is a factual development that qualifies as a "new matter" because it directly impacts the sole ground of appeal under Article 8.
• The Tribunal must assess whether the appellants meet the requirements of paragraph 276B of the Immigration Rules, which governs indefinite leave to remain based on long residence.
• If the appellants satisfy paragraph 276B and no public interest factors oppose their continued residence, the human rights appeal should be allowed as removal would be disproportionate.
• The Tribunal clarified that while it can allow the appeal based on the five-year residence, it cannot dictate the exact form or duration of the leave to remain, leaving that to the discretion of the Secretary of State.

Impact

This judgment has significant implications for future human rights appeals in the UK, particularly concerning the recognition of long-term residence as a new matter. It establishes that:

• Applicants who achieve ten years of continuous lawful residence during their appeal have grounds to have this fact considered, potentially strengthening their position under Article 8.
• Tribunals must meticulously assess new factual developments that could influence the proportionality of removing an individual from the UK.
• The procedural aspects of submitting statements of additional grounds must adhere strictly to statutory requirements, emphasizing written submissions over oral statements.

Complex Concepts Simplified

Conclusion

The Upper Tribunal's decision in OA and Others v Secretary of State for the Home Department underscores the critical role that ten-year continuous lawful residence plays in human rights-based immigration appeals. By recognizing such residence as a "new matter," the Tribunal provides a clearer pathway for appellants to leverage their long-term presence in the UK as a substantial factor in protecting their Article 8 rights. Additionally, the judgment reinforces the necessity for precise procedural compliance, particularly concerning the submission of additional grounds for appeal. This case not only sets a precedent for future appeals but also enhances the procedural integrity and fairness of the immigration appeals process in the UK.