*sm*Immigration Law- In the Court of Appeal(Civil Division)- On Appeal from the Upper Tribunal of the Immigration and Asylum Chamber- IA/00063/2013, IA/08417/2012*em*
These are appeals by two foreign nationals against decisions of the Upper Tribunal upholding decisions that their applications for indefinite leave to remain under article 8 of the European Convention on Human Rights be refused.
The principal issue in these appeals is whether the Upper Tribunal correctly applied the transitional provisions set out in the Statement of Changes in Immigration Rules promulgated on 13th June 2012. Those changes in the Immigration Rules came into effect on 9th July 2012.
Major changes to the Immigration Rules came into force on 9th July 2012. The transitional provisions stated that the new rules would not apply to applications for leave to remain before that date.
In both the present cases the appellants applied for indefinite leave to remain under ECHR article 8 before 9th July 2012. The Secretary of State rejected the applications and the tribunals upheld the Secretary of State's decision.
In JE's case the Upper Tribunal relied upon rule 276ADE (iii) of the new rules (requiring 20 years' continuous residence) as a consideration materially affecting the decision. Therefore that decision must be quashed and the matter remitted to the Upper Tribunal.
In HB's case both the Secretary of State and the tribunal made reference to rule 276ADE (iii) of the new rules, but they did not rely upon it as a consideration materially affecting the decision. HB's appeal must be dismissed.