Edgehill & Anor v Secretary of State for the Home Department

Factual and Procedural Background

These appeals arise from decisions of the Upper Tribunal upholding refusals of applications for indefinite leave to remain under Article 8 of the European Convention on Human Rights ("ECHR"). The appellants, two foreign nationals, applied for indefinite leave to remain before 9th July 2012, prior to changes in the Immigration Rules which took effect on that date. The principal issue concerns whether the Upper Tribunal correctly applied the transitional provisions relating to those changes, particularly the shift from the old rules (in force until 8th July 2012) to the new rules (effective from 9th July 2012).

The first appellant ("Appellant A") is a Jamaican national who arrived in the UK in 1998 and applied for indefinite leave to remain on grounds including Article 8 of the ECHR. Her application was refused, and after dismissal of her appeals by the First-tier and Upper Tribunals, she appealed to the Court of Appeal.

The second appellant ("Appellant B") is a Mauritian national who arrived in the UK in 2003 and similarly applied for leave to remain under Article 8. Her application was refused, and her appeals to the First-tier and Upper Tribunals were dismissed. She also appealed to the Court of Appeal.

Legal Issues Presented

1. Whether the Upper Tribunal lawfully applied the transitional provisions of the Immigration Rules in deciding applications for indefinite leave to remain made before 9th July 2012.
2. Whether it was lawful to reject Article 8 applications made before 9th July 2012 by reference to the new requirement of 20 years' continuous residence under the new Immigration Rules, rather than the 14 years specified in the old rules.
3. Whether the First-tier Tribunal erred in its factual findings regarding the appellants' ties to their countries of origin, particularly in Appellant B's case.

Arguments of the Parties

Appellants' Arguments

• The appellants contended that the transitional provisions explicitly mandated that applications made before 9th July 2012 must be decided under the old Immigration Rules in force on 8th July 2012, not the new rules effective from 9th July 2012.
• They argued that reliance on the new rule requiring 20 years' continuous residence was unlawful when applied to their pre-9th July 2012 applications, which should be governed by the prior 14-year requirement.
• Appellant B additionally contended that the tribunals erred in finding that she and her family maintained ties with Mauritius, affecting the assessment under Article 8.

Respondent's Arguments

• The respondent argued that applications under Article 8 are not applications "under the rules" per se, and thus the transitional provisions do not apply to them.
• It was submitted that appellate tribunals decide Article 8 appeals by reference to the current state of affairs, including the new Immigration Rules, regardless of when the application was initially made.
• The respondent maintained that reliance on the new rules was appropriate and lawful in the appeals before the Upper Tribunal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by identifying the relevant Immigration Rules: the "old rules" (Rule 276B), effective until 8th July 2012, requiring 14 years' continuous residence for indefinite leave to remain on grounds of long residence; and the "new rules" (Rule 276ADE), effective from 9th July 2012, requiring 20 years' continuous residence for leave to remain on grounds of private life under Article 8.

The transitional provisions explicitly stated that applications made before 9th July 2012 and undecided by that date were to be decided under the old rules. The respondent's argument that Article 8 applications are not applications under the Immigration Rules and thus not subject to the transitional provisions was acknowledged as subtle but ultimately rejected.

The court emphasized the need for the Immigration Rules to be understandable by ordinary applicants and found that the natural and ordinary meaning of the transitional provisions precluded reliance on the new 20-year residence requirement for applications made before 9th July 2012.

The court qualified that a mere passing reference to the new rules would not invalidate a decision; however, reliance on the new 20-year residence requirement as a material consideration in deciding the application would render the decision unlawful.

Applying this principle to the cases, the court found that in Appellant A's case, the Upper Tribunal erred by materially relying on the new 20-year residence requirement, as the application was made before 9th July 2012. Therefore, the decision was quashed and the matter remitted for reconsideration.

In Appellant B's case, although the new rules were referenced, the 20-year residence requirement did not materially affect the decision, which was primarily based on factual findings regarding ties to Mauritius and the strength of the Article 8 claim. The tribunal's factual findings were supported by evidence and were not challenged as unreasonable. Thus, the appeal was dismissed.

Holding and Implications

The court's final decisions were as follows:

• Appellant A's appeal was allowed: The Upper Tribunal's decision was quashed due to unlawful reliance on the new 20-year residence requirement. The case was remitted for reconsideration under the old rules applicable at the time of application.
• Appellant B's appeal was dismissed: The references to the new rules did not materially affect the decision, and the tribunal's factual findings regarding ties to the country of origin were upheld.

The decision clarifies the proper application of transitional provisions in Immigration Rules changes, affirming that applications made before a change must be decided under the rules in force at the time of application. No new precedent was established beyond confirming the importance of respecting transitional provisions and proper reliance on relevant rules in immigration decisions.