Duncan Lewis represent Claimant against Upper Tribunal upholding decision that indefinite leave to remain application under European Convention on Human Rights be refused

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On 9 July 2012 the Immigration Rules changed in relation to how the Home Office viewed Article 8 should apply in Immigration cases. The Court of Appeal in JE (Jamaica) grappled with the issue of what should be done in the circumstances where an application was submitted before 9 July 2012, but decided post 9 July 2012.

Duncan Lewis Immigration Solicitor Bernadette Adusei

Duncan Lewis Immigration Solicitor Bernadette Adusei

This appeal highlights the mistaken approach to the transitional provisions which the Tribunal took. The outcome of this is of significant public interest as there are many people who fall within this category

*Edgehill and another v Secretary of State for the Home Department [2014] EWCA Civ 402- IN THE COURT OF APPEAL (CIVIL DIVISION)-ON APPEAL FROM THE UPPER TRIBUNAL OF THE IMMIGRATION AND ASYLUM CHAMBER- 25th April 2014

The Court of Appeal examined the appeal of two appellants in the case, of which the lead appellant, JE was represented by Duncan Lewis Solicitors.

According to Case Judgement, JE is a Jamaican national who applied for leave to remain in the United Kingdom on the basis of her long residency, having been in the United Kingdom for the requisite period of 14 years when the final decision was made by the Upper Tribunal in February 2013, however not at the time the application was made pre 9 July 2012.*

The Upper Tribunal held that the post 9 July 2012 rules would apply to JE's application for long residency as at the time of the hearing before the Upper Tribunal, the new rules were in effect.*

The Court of Appeal disagreed with the Upper Tribunal, and held that in the circumstances, the right rules to apply were the pre 9 July 2012 rules. The Court of Appeal reasoned that the transitional provisions which are found in the relevant statement of changes clearly state that any decision pending an application filed with the Home Office pre 9 July 2012 will be decided according to the pre 9 July 2012 rules, even if the decision is taken after that date.*

The Court of Appeal further held that the rules to which the Courts must have regard in appeals relating to applications made pre 9 July 2012 would be the rules pre 9 July 2012.*

In allowing the appeal of JE, the Court of Appeal has allegedly “created an anomaly” in relation to an application submitted before the change of the rules which did not meet the requirements, but due to an ongoing appeal process with the passage of time, met the requirements of the then defunct rules.*

It remains to be seen whether the Home Office will now be granted permission to appeal to the Supreme Court.

Duncan Lewis Immigration Solicitor Bernadette Adusei added;

“It is important that the correct approach and application of the transitional provisions set out in the Statement of Changes in Immigration Rules is identified, regardless of lawfulness in the UK. Under paragraph 276ADE, which came into effect on 9 July 2012, the requirements for an application of long residence changed from a period of 14 years to a period of 20 years, thus significantly affecting many people who wish to regularise their stay in the United Kingdom. This appeal highlights the mistaken approach to the transitional provisions which the Tribunal took. The outcome of this is of significant public interest as there are many people who fall within this category.”

About Duncan Lewis

Duncan Lewis, established in 1998, is the largest civil legal aid practice in the UK and one of the country's fastest growing firms of solicitors, serving both corporate entities and private individuals from offices across London and throughout the UK. A recommended leading law firm by Law Society Lexcel, Legal 500; Duncan Lewis employs over 500 members of staff and was the first law firm to achieve the Investors in People Gold Quality Standard Mark in 2009. Representing over 25,000 clients per year, the company has an excellent reputation in the Administrative Court, High Court and Court of Appeal in the Immigration, Public law and Family/Child Care jurisdictions.

Established areas of law are: business immigration, child care, civil liberties, clinical negligence, community care, crime and fraud, dispute resolution, debt and insolvency, employment, family and divorce, housing, asylum and immigration, litigation, mental health, personal injury, prison law, professional negligence, public law and administrative law, regulatory matters and welfare benefits.

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