GB - Edgehill & Anor v Secretary of State for the Home Department

Judgment

Lord Justice Jackson:

This judgment is in five parts, namely:

Part 1. Introduction (paragraphs 2 to 11) Part 2. The facts (paragraphs 12 to 21) Part 3. Is it lawful to reject an article 8 application made before 9 th July 2012 in reliance upon the applicant’s failure to achieve 20 years’ residence, as specified in the new rules? (paragraphs 22 to 34) Part 4. Decisions in the individual cases (paragraphs 35 to 40) Part 5. Executive summary and conclusion (paragraphs 41 to 44)

Part 1. Introduction

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 13 th June 2012. Those changes in the Immigration Rules came into effect on 9 th July 2012.

I shall refer to the Immigration Rules as they stood up to 8 th July 2012 as “the old rules”. I shall refer to the Immigration Rules as they were on and after 9 th July 2012 as “the new rules”.

Rule 276B of the old rules provided:

“ Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom; or

(b) he has had at least 14 years continuous residence in the United Kingdom, excluding any period spent in the United Kingdom following service of notice of liability to removal or notice of a decision to remove by way of directions under paragraphs 8 to 10A, or 12 to 14, of Schedule 2 to the Immigration Act 1971 or section 10 of the Immigration and Asylum Act 1999, or of a notice of intention to deport him from the United Kingdom; and

(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:

(a) age; and

(b) strength of connections in the United Kingdom; and

(d) domestic circumstances; and

(e) previous criminal record and the nature of any offence of which the p