Introduction

The case of MD Saddik Md Ab Sowdager (AP) v Advocate General, decided on March 11, 2020, by the Outer House of the Scottish Court of Session, addresses critical aspects of the United Kingdom's immigration law, specifically concerning Indefinite Leave to Remain (ILR). The petitioner, a Bangladeshi citizen, sought judicial review against the refusal of the Upper Tribunal (Immigration and Asylum Chamber) to grant him permission to appeal a decision that denied his right to remain in the UK based on Article 8 of the European Convention on Human Rights (ECHR). The core issues revolved around the interpretation of Immigration Rules (IR) 276B, which governs ILR based on long residence, and the applicability of Rule 39E concerning periods of overstaying.

Summary of the Judgment

Lord Brailsford delivered the opinion of the court, ultimately dismissing the petition. The court upheld the decision of the Upper Tribunal (UT), affirming that the petitioner failed to meet the criteria to alter his legal position based on previously conceded points. The judgment clarified the independent nature of Rule 276B(i)(a), which requires continuous lawful residence, and Rule 276B(v), which pertains to disregarding certain periods of overstaying under specific conditions. The court maintained that the exceptions provided in Rule 276B(v) do not negate the necessity of fulfilling the criteria set in Rule 276B(i)(a).

Analysis

Precedents Cited

The judgment extensively referenced several precedents that influenced its decision:

• R v Secretary of State for the Home Department, Ex parte Robinson [1998] QB 92 - Established criteria for altering legal positions in immigration cases.
• R(Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070 - Interpreted IR 276B, emphasizing the independent requirements within the rule.
• Mbomson v Secretary of State for the Home Department [2000] INLR 389 - Followed the Court of Appeal's interpretation in Ahmed regarding IR 276B's structure.
• Maslov v Austria [2009] INLR 47 - Provided ECHR-related criteria for expulsion measures, influencing the interpretation of criminal conduct periods.
• AM (Ethiopia) v Entry Clearance Officer [2010] 1 WLR 48 - Clarified the application of ECHR rights in immigration rulings.

Legal Reasoning

The court meticulously dissected the interplay between Rule 276B(i)(a) and Rule 276B(v). It emphasized that:

• Independence of Provisions: Rule 276B(v) does not serve as an exception to Rule 276B(i)(a) but operates as a separate, additional requirement. Therefore, disregarding overstaying periods under Rule 276B(v) does not fulfill the continuous lawful residence mandate of Rule 276B(i)(a).
• Construction of the Rules: The court adhered to the principle of interpreting the Immigration Rules based on the natural and ordinary meaning of the language used, without inferring intentions from policy statements or guidance documents.
• Criteria for Altering Position: The petitioner failed to meet the stringent criteria from Ex parte Robinson, particularly the necessity for an argument to be "readily discernible" and possess "strong prospects of success."
• Application of ECHR Principles: While Article 8 ECHR rights were acknowledged, the court clarified that immigration rules are not directly construed in accordance with convention rights but must be applied in a manner that does not contravene them.

Impact

This judgment reinforces the strict separation between different criteria within immigration rules. By affirming that Rule 276B(v) does not alleviate the requirements of Rule 276B(i)(a), the court ensures that applicants cannot rely solely on discretionary provisions to meet ILR criteria. This decision sets a clear precedent for future ILR cases, mandating that all specified conditions must be independently satisfied, thereby tightening the application process for long-term residents seeking permanent status.

Complex Concepts Simplified

Indefinite Leave to Remain (ILR): A form of permanent residency in the UK, allowing individuals to live and work without time restrictions.

Rule 276B(i)(a): Specifies that applicants must have at least 10 years of continuous lawful residence in the UK to qualify for ILR.

Rule 276B(v): Allows for the disregarding of certain periods of overstaying if specific conditions are met, such as applying within a designated timeframe after a refusal.

Article 8 ECHR: Protects the right to respect for private and family life, which can be a ground for challenging deportation or removal.

Ex parte Robinson: A legal principle allowing applicants to introduce new arguments in judicial reviews if they are obvious and have strong prospects of success, even if not previously raised.

Conclusion

The decision in MD Saddik Md Ab Sowdager (AP) v Advocate General solidifies the independent application of different provisions within the UK's Immigration Rules. By dismissing the petition, the court underscored that provisions such as Rule 276B(v) do not circumvent the foundational requirements of Rule 276B(i)(a) for ILR. This clarification aids both applicants and legal practitioners in understanding the non-overlapping nature of immigration criteria, ensuring that each condition must be individually met to qualify for permanent residency. The judgment also highlights the judiciary's role in maintaining the integrity and clarity of immigration laws, preventing the unintended conflation of distinct legal provisions.