Upper Tribunal: ‘Historic injustice’ v ‘historical injustice’

Patel (historic injustice: NIAA Part 5A) India [2020] UKUT 351 (IAC) (25 November 2020) 

The Upper Tribunal (Lane J and UTJ Norton-Taylor) has imparted guidance explaining the difference between “historic injustice” and “historical injustice” and it also gave guidance on Part 5A  of the the Nationality, Immigration and Asylum Act 2002 and the weight to be given to the maintenance of effective immigration controls. The UT started its decision by providing dictionary definitions of the terms “historic” (famous or important in history, or potentially so), “historical” (of or concerning history → belonging to or set in the past), and “injustice” (lack of justice, an unjust act or occurrence). The UT said that the fact that the historic injustice injustice exists is uncontroversial and will be generally recognised. It was the UT’s view that cases that may be described as involving historical injustice are where the individual has suffered as a result of the wrongful operation (or non-operation) by the SSHD of her immigration functions. An Indian citizen, Ms Patel came to the UK in 2010 as a student and renewed her leave as a post-study worker and was granted leave until May 2014. In June 2014, she applied for leave to remain outside the Immigration Rules. However, her application was refused on 28 August 2014 and she challenged that refusal by judicial review. In November 2016, her judicial review claim was dismissed on the basis that the matter had, by then, become academic. She wanted to remain in the UK to seek redress against her former employer but that was concluded in January 2015.

Then in 2018, Ms Patel reapplied for leave together with a human rights claim which the SSHD refused in January 2019 and subsequently her family life claim fell away and she became solely reliant on the private life limb of article 8 of the ECHR. The Home Office decision-maker found that Ms Patel had failed to satisfy paragraph 276ADE(1)(vi) of the Immigration Rules and found no exceptional circumstances in her case that would render a refusal of leave a breach of article 8 as a result of unjustifiably harsh consequences for her. The decision-maker rejected that she would be an outcast upon return to India and the current economic situation in India may be poor. The SSHD was satisfied she would not suffer any greater hardship than other people in India. Similarly, the decision-maker was not satisfied that Ms Patel’s contribution to UK charities carried weight and it was also open to her to return to India and assist her local community and charities in that country. The decision-maker observed that she would have been fully aware when developing any such private life that she had no expectation of remaining in the UK indefinitely. Nothing in her case demonstrated that there would be unjustifiably harsh consequences for her if she were to return to India. Upon her appeal against the refusal, FTTJ Bulpitt dismissed her appeal after noting that she claimed to have spent five years fighting against unfair decisions which have had a detrimental effect on her and her ability to cope, were she to have to return to India. While she claimed to be a Londoner at heart, the FTTJ noted that that little further evidence of her private life was adduced.

Upper Tribunal 

The crucial points made by Ms Patel in relation to her appeal were that she was the victim of judicial scuppering for the past five years, the employment tribunal proceedings against the employer were successful in part with the court acknowledging that she had suffered discrimination. The subsequent judicial review case against the Home Office’s decision to deny further leave to remain to pursue said employment tribunal also concluded with the Home Office accepting that it had essentially made an error in judgement on the initial applications. However, since she had already been able to stay in the UK for the tribunal claim, while the judicial review proceedings took place, she had essentially received the requested leave to remain and considered her claim academic. She argued that this was a major miscarriage of justice in addition to the trivialisation of immigration law entirely.

Her application for FLR(O) had been made to establish a legal stay in addition to have a recorded regularised immigration status. By acknowledging its misgivings in making the decision but refusing to grant any relief claiming the case was academic the Home Office raised concerns on the validity of any immigration laws at all. A government organisation deemed the process of paying fees and making an application unnecessary by saying that she had already managed to stay on in this country without a clarified immigration status and that fulfilled the purpose. That, said Ms Patel, sets out a very dangerous precedent.

Criticism was levelled at the FTT in the light of that “obvious and inconclusive historic unfair treatment” for categorising the situation as “disappointing” for her who would have been “very upset”. She submitted that this “does not grapple with the lawful effect of the historic injustice” that she had suffered. Equally, she also attacked the decision of FTTJ Bulpitt on the ground that it was wrong for the judge to upon R (Agyarko) v SSHD (2017) UKSC 11 for the proposition that:

57. … in general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control. 

It was also said that FTTJ Bulpitt wrongly elevated the relevant test and it was argued that that the words “very compelling”, used by FTTJ Bulpitt, indicated that he was employing the test of very compelling circumstances, as set out in section 117C(6) of the 2002 Act, a test which applied to foreign criminals who are liable to deportation and were sentenced to a period of imprisonment of at least four years. It was common ground that Ms Patel was not liable to deportation

The UT considered historic injustice, historical injustice, and then discussed the problems raised before it. Lane J and UTJ Norton-Taylor and determined the following principles in relation to the issues at hand: 

A. Historic injustice

(1) For the future, the expression “historic injustice”, as used in the immigration context, should be reserved for cases such as those concerning certain British Overseas citizens or families of Gurkha ex-servicemen, which involve a belated recognition by the United Kingdom government that a particular class of persons was wrongly treated, in immigration terms, in the past; and that this injustice should be recognised in dealing with applications made now (eg Patel and Others v Entry Clearance Officer (Mumbai) [2010] EWCA Civ 17; AP (India) v Secretary of State for the Home Department [2015] EWCA Civ 89).

(2) The fact that the injustice exists will be uncontroversial. It will be generally recognised. It will apply to a particular class of persons. Unlike cases of what might be described as “historical injustice”, the operation of historic injustice will not depend on the particular interaction between the individual member of the class and the Secretary of State. The effects of historic injustice on the immigration position of the individual are likely to be profound, even determinative of success, provided that there is nothing materially adverse in their immigration history.

B. Historical injustice

(3) Cases that may be described as involving “historical injustice” are where the individual has suffered as a result of the wrongful operation (or non-operation) by the Secretary of State of her immigration functions. Examples are where the Secretary of State has failed to give an individual the benefit of a relevant immigration policy (eg AA (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 12); where delay in reaching decisions is the result of a dysfunctional system (eg EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41); or where the Secretary of State forms a view about an individual’s activities or behaviour, which leads to an adverse immigration decision; but where her view turns out to be mistaken (eg Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009). Each of these failings may have an effect on an individual’s Article 8 ECHR case; but the ways in which this may happen differ from the true “historic injustice” category.

C. Part 5A of the Nationality, Immigration and Asylum Act 2002 and the weight to be given to the maintenance of effective immigration controls

(4) In all cases where, for whatever reason, the public interest in the maintenance of effective immigration controls falls to be given less than its ordinary weight, the usual course should be for the judge so to find in terms, when addressing section 117B(1) of the 2002 Act. The same result may be achieved, at least in some situations, by qualifying the consideration in section 117B(4) that little weight should be given to a private life formed when the person concerned is in the United Kingdom unlawfully. Judicial fact-finders should, however, avoid any recourse to double-counting, whereby not only is the weight to be given to effective immigration controls diminished but also, for the same reason, a private life is given more weight than would otherwise be possible by the undiluted application of section 117B(4).

(5) The weight to be given to the public interest in the maintenance of effective immigration controls is unlikely to be reduced because of disappointments or inadequacies encountered by individuals from teaching institutions or employers.

The UT said that it was clear that Ms Patel was not in a position to contend that she had suffered “historic injustice”. She was not a person of a class that had been affected by the unfair or unjust treatment, such as that suffered by the families of those denied citizenship in the late 1960s, or by the families of ex-Gurkha servicemen. She was not able to show she had been subjected to “historical injustice”, in any of the ways contemplated by the law and she was unable to point to any beneficial policy of the SSHD wrongly withheld in her case; nor had the decision-maker reached an erroneous decision that Ms Patel was no longer entitled to leave because of some misbehaviour on her part as had been without leave to remain for several years. The circumstances in which the she came to find herself without leave were considered in detail by the Employment Tribunal and the UT said that it was regrettable that she saw fit to describe herself as “the victim of judicial scuppering for the past five years” and that this description was set out in the grounds of application for permission to appeal as “there is no suggestion of any erroneous judicial behaviour of any kind.” 

Reliance placed in Mansur (immigration advisors failings: Article 8) Bangladesh [2018] UKUT 274, failed to curry favour with the UT which said that the result in that case was exceptional and the UT had concluded that the weight of the public interest in maintaining effective immigration control cannot be reduced only on the basis that some “immigration advisers who offer poor advice and other services” and the present UT said that similarly just because there are employers whose staff sometimes behave in sub-optimal ways does not mean that the weight to be given to immigration control should be reduced.

Furthermore, as for section 117B(5) of the 2002 Act, which states that little weight should be given to a private life established by a person at a time when that person’s immigration status is precarious, it mattered not that Ms Patel’s employers had not behaved properly with her and the reality was that at all times she lacked indefinite leave to remain and thus her status was precarious as held in Rhuppiah v SSHD [2018] UKSC 58, discussed here, and the UT cited the approach of Sales LJ – as he then was – in Rhuppiah v SSHD [2016] EWCA Civ 803 that “considerable weight should be given to Parliament’s statement in section 117B(5) regarding the approach which should normally be adopted. In order to identify an exceptional case in which a departure from that approach would be justified, compelling reasons would have to be shown why it was not appropriate.” No matter how the UT approached Ms Patel’s primary case on section 117B, it remained correct that the public interest in the maintenance of effective immigration control was strong and her primary case did not contain anything which required FTTJ Bulpitt to regard the public interest as diminished. 

The UT added that although the English language has a very large vocabulary, there is a limit to the expressions that may be employed in the present area. The fact that section 117C(6) speaks of “very compelling circumstances” is not a reason to ignore or qualify paragraph 57 of Agyarko and the UT drew attention to the fact that section 117C(6) refers to “very compelling circumstances, over and above those described in Exceptions 1 and 2”, i.e. the exceptions set out in section 117C(4) and (5). The context is thus different.

Comment

Ms Patel’s case shows the hardships that immigration litigants and appellants face and the resources they spend in pursuing their cases. But on the other hand, she was never in any position to convincingly argue that she had suffered “historic injustice” because she was not a person of a class that has been affected by unfair or unjust treatment, such as that suffered by the families of those denied citizenship in the late 1960s, or by the families of ex-Gurkha servicemen. 

Similarly she was unable to demonstrate she had suffered any “historical injustice”, in any way. She was unable to single out any beneficial policy that had wrongly been withheld in her case. In sum, all her efforts to obtain a UK visa, which should be a simple process, did not result in success despite the fact that she spent 10 years in the country. All this shows that the UK is an unworthy and useless destination for foreigners and they would be wise not to devote too much time, money and energy in trying to get a visa after falling into the vicious cycle of making immigration applications and then taking the SSHD to court after their applications are refused. Of course the fact that she was provided poor legal advice and representation, and that the UT did not find that failing to aid her matter, exposes the very harsh predicament that foreigners are placed in while fighting their cases. 

On the bright side, are no doubt cases where appellants do succeed on “historic injustice” and “historical injustice” grounds. Judges and presenting officers are sympathetic with the harsh predicaments of the such appellants and it is just that Ms Patel was not one of these people. 

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Article 8, British Overseas Citizens, ECHR, Gurkhas, Historic Injustice, Historical injustice, Immigration Act 2014, Immigration Rules, Judicial Review, Proportionality, Public Interest, Tribunals, UKSC and tagged , , , , . Bookmark the permalink.

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