Thirty Park Place's Christian Howells has been successful in an immigration appeal to the Court of Appeal
AR (Nepal) [2011] EWCA Civ 1439, 18th of Ocotber 2011, before Rix LJ, Sullivan LJ and Lewison LJ.
This was an appeal from the decision of DIJ A A Wilson sitting in the Upper Tribunal (IAC) that an appellant could not rely upon the decision of AS (Afghanistan) [2009] EWCA CIV 1076 to raise an additional ground in response to a ‘one-stop notice’, where that additional ground relied on circumstances that arose after the date of decision. The particular additional ground relied upon was that the Appellants had accrued 10 years lawful residence for the purpose of paragraph 276B of the Immigration Rules, a couple of months after the date of the decision that was being appealed against. That post-decision evidence was adduced pursuant to s85(4) of the Nationality, Immigration & Asylum Act 2002. DIJ A A Wilson placed reliance, in error, on the decision of EA (Section 85(4) explained) Nigeria [2007] UKAIT 00013 at paragraph 7, for the proposition that the Appellant can only succeed by showing that the original application would be successful at the date of the hearing. That was clearly wrong in light of the Court’s decision in AS (Afghanistan).
The Court ordered that the Appellants were to be granted Indefinite Leave to Remain pursuant to paragraph 276B, unless the Respondent raised a legitimate objection to that grant within 28 days. The reason for this was that it seemed that there was only one rational outcome on the application, and to date, the Respondent had not provided any evidence that any of the exclusions applied. The Respondent did not raise an objection and the Appellants have been granted Indefinite Leave to Remain.