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Long Residence and Human Rights Appeals

What happens when you complete 10 years’ long residence whilst a human rights appeal is pending?  This is essentially what the Upper Tribunal considered in OA and Others (human rights; ‘new matter’; s.120) Nigeria [2019] UKUT 00065.

Relevance of meeting the requirements of the Immigration Rules in a human rights appeal

The first paragraph of the headnote, corresponding with paragraph 27 of the judgment, confirms what was previously held by a differently-constituted UT in Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 and the Court of Appeal in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109: namely that in a human rights appeal, provided Article 8(1) is engaged and the requirements of an immigration rule are met, there will be no public interest in an appellant’s removal from the UK.

New matter

The Upper Tribunal in OA confirms that completing ten years’ continuous lawful residence whilst a human rights appeal is ongoing will generally constitute a “new matter” for the purposes of s.85 of the 2002 Act, since meeting the requirements of long residence can affect the outcome of the appeal. The Secretary of State’s consent is required for the Tribunal to consider a new matter.

It should be noted that, on the facts of OA, the appeals were against a refusal of a human rights claim that had not been made in the context of a long residence application. The completion of the 10 years’ residence occurred during the time the appeals were pending and whilst the appellants had their leave extended by virtue of s.3C IA 1971. As a result, the Secretary of State had not considered paragraph 276B in refusing the appellant’s human rights claim, hence the matter was “new”.

Outcome of a human rights appeal when the 10 years’ requirement is satisfied

The Upper Tribunal further clarified that, unless there is a discrete public interest factor making an appellant’s removal proportionate, a human rights appeal should be allowed where the judge finds that the 10 years’ requirement is satisfied and there is nothing to indicate an application for indefinite leave to remain by the appellant would be likely to be rejected by the Secretary of State. The “discrete public interest factor” must, in my view, refer to the general grounds an applicant must not fall for refusal under in accordance with sub-paragraph 276B(iii), or the public interest considerations in sub-paragraph 276B(ii), both of which, in any event, form requirements for indefinite leave to remain on the grounds of long residence; that, however, is not entirely clear.

It was held that neither the FtT or the UT have jurisdiction to direct the Secretary of State to grant any particular form or duration of leave. Nonetheless, the UT proceeds to consider that, following an allowed appeal, all the Secretary of State is required to do is grant the appellant a period of limited leave that is sufficient to enable them to make an application for indefinite leave to remain and pay the relevant fee. Again, this is on the facts of OA, where the original application, whose refusal was appealed against, was not for indefinite leave to remain.

Statements of additional grounds

Finally, it was clarified that a statement of additional grounds for the purposes of s.120 of the 2002 Act must be made in writing. The contents of a witness statement can constitute a statement of additional grounds. But an oral communication cannot.

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