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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> MD (Jamaica) & Anor v Secretary of State for the Home Department [2010] EWCA Civ 213 (10 March 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/213.html Cite as: [2010] Imm AR 526, [2010] EWCA Civ 213

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
ASYLUM AND IMMIGRATION TRIBUNAL
C5/2009/0865
C5/2009/1855

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th March 2010

Lord Justice Dyson:

Introduction

1. These two appeals raise issues as to the interpretation and application of the long residence provisions contained in para 276 of the Immigration Rules HC 395. So far as material, para 276 provides:

"Long Residence

LONG RESIDENCE IN THE UNITED KINGDOM

276A. For the purposes of paragraphs 276B to 276D:

(a) "continuous residence" means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return…

(b) "lawful residence" means residence which is continuous residence pursuant to:

(i) existing leave to enter or remain; or

(ii) temporary admission within section 11 of the 1971 Act where leave to enter or remain is subsequently granted; or

(iii) an exemption from immigration control, including where an exemption ceases to apply, if it is immediately followed by a grant of leave to enter or remain.

…………

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…

…

INDEFINITE LEAVE TO REMAIN ON THE GROUND OF LONG RESIDENCE IN THE UNITED KINGDOM

276C. Indefinite leave to remain on the ground of long residence in the United Kingdom may be granted provided that the Secretary of State is satisfied that each of the requirements of paragraph 276B is met.

REFUSAL OF INDEFINITE LEAVE TO REMAIN ON THE GROUND OF LONG RESIDENCE IN THE UNITED KINGDOM

276D. Indefinite leave to remain on the ground of long residence in the United Kingdom is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 276B is met."

2. From time to time, the Secretary of State issues Immigration Directorates' Instructions ("IDIs") which contain instructions to caseworkers as to how they should decide immigration issues. The version of chapter 18 of the IDIs in force between June 1998 and March 2006, was entitled "The Long Residence Concession" ("LRC"). Para 3 of the LRC provided:

"UNLAWFUL RESIDENCE

Where a person has completed 10 years continuous lawful residence he should normally be granted indefinite leave to remain without enquiry.

When considering whether a person has remained in the United Kingdom lawfully for 10 years the following breaches of conditions may for the purposes of this concession be considered as lawful:

A short delay in submitting an application, provided the application is subsequently granted;"

3. A new version of chapter 18 was issued in May 2007. A yet further version was issued in April 2009, para 2.3.3 of which provided:

"Breaks in lawful residence and the use of discretion

Caseworkers should be satisfied that the applicant has acted lawfully throughout the entire period and has made every attempt to comply with the immigration rules.

If an applicant has a single short gap in lawful residence through making one single previous application out of time by a few days (not usually more than 10 calendar days out of time) caseworkers should use discretion granting ILR, so long as the application meets all the other requirements.

It would not usually be appropriate to exercise discretion when an applicant has more than one gap in their lawful residence due to submitting more than one of their previous applications out of time, as they would not have shown the necessary commitment to ensuring they have maintained lawful leave throughout their time in the UK.

It may be appropriate to use your judgment in cases where an applicant has submitted a single application more than 10 days out of time if there are extenuating reasons for this (e.g. postal strike, hospitalisation, administrative error on our part etc). This must be discussed with a Senior Caseworker.

Examples of use of discretion:

The following examples illustrate some instances in which it may/may not be appropriate to exercise discretion. Please note this is not an exhaustive list of scenarios and each application should be judged on its own merits and discussed with a Senior Caseworker."

4. Both appellants sought indefinite leave to remain in the UK on the basis of 10 years continuous lawful residence. Both had been continuously resident for a period in excess of 10 years. But their applications were refused by the Secretary of State on the grounds that they had not been lawfully resident in the UK throughout the period. There had been a period or periods during which they had been overstayers, after their leave to remain had expired and before they had sought and been granted further leave to remain.

Marjorie Drysdale: the facts and the decision under appeal

5. Ms Drysdale was born in 1954. She is a Jamaican national. She came to the UK from Jamaica on 19 December 1996 and was granted leave to enter as a visitor for 6 months. On 30 July 1997, she made the first of a number of successful applications for leave to remain as a student. On 17 January 2008, she applied for indefinite leave to remain under para 276B(i)(a) of HC 395. On 25 June 2008, the Secretary of State refused her application on the grounds that she had not been in continuous lawful residence in the UK for a period of at least 10 years. There had been two interruptions of the continuity of her lawful residence. The leave to remain granted to her on 23 September 1999 had expired on 31 July 2000, but she did not apply for further leave to remain until 14 August 2000 and her application was not granted until 26 August 2000. The second interruption occurred as a result of the expiry on 31 October 2002 of the leave to remain granted 26 August 2000. She did not apply for further leave to remain until 18 December 2002 and this application was not granted until 26 February 2003.
6. It can be seen, therefore, that the intervals between the expiry of her existing leave to remain and the date on which she applied for further leave to remain were 2 and 7 weeks respectively.
7. On 4 July 2008, Ms Drysdale appealed against the decision of the Secretary of State. On 26 August 2008, her appeal was allowed by IJ Iqbal. On 3 September, the Secretary of State applied for a reconsideration of IJ Iqbal's decision. Reconsideration was ordered by SIJ Waumsley. On 27 November 2008, SIJ Nichols decided that IJ Iqbal had erred in law in his determination. He adjourned the reconsideration hearing.
8. On 16 February 2009, upon a full reconsideration, IJ Khan dismissed the appeal of Ms Drysdale. She appeals to this court with the permission of Elias LJ.
9. Having set out the facts, IJ Khan referred to para 276 and at para 18 of his Determination said:

"I find that the Rules mean exactly what they say and therefore the appellant has not had continuous lawful residence to meet the requirements of paragraph 276B and therefore the appeal must fail on this account. I am aided in this conclusion by the Tribunal decision in OS [2006] UKAIT00031 where it was said that paragraphs 276A-D of HC 395 stand alongside the public concession in long residence cases. The terms of the concession are not to be used as an aid to interpretation of the Rules. The Rules mean what they say and a person who does not meet the requirements of the Rules may have the benefit of the Secretary of State's exercise of discretion in his favour under the concession. However, the concession was withdrawn by the Secretary of State in 2006 and the Tribunal in ordering reconsideration, said at paragraph 6 of the decision that the concession gave guidance to Immigration Officers that a short delay in submitting an application, provided the application was subsequently granted, would not in effect, be fatal to a claim that there had been continuous lawful residence. Nevertheless, as the Immigration Judge set out at paragraph 20 of her determination, the concession had been long withdrawn by the time of this decision and even if it had existed, the appellant's application would have considered separately under the concession rather than the terms of the concession being used as an aid to interpret the Rules. In this respect the judge took account clearly of what the tribunal had found in OS."

10. He then addressed the submission that to refuse the claim for indefinite leave to remain would violate the appellant's rights under article 8 of the European Convention of Human Rights ("ECHR") and said:

"26. In relation to the Article 8 claim, upon the evidence before me I am not satisfied that the appellant has established the right to respect to a family life under Article 8 (1) because in fact she has no family here. She is a single woman and she is not in a relationship with anyone. Her family live in Jamaica and the USA and therefore there can be no question of a protected right being established in respect of any family life in the UK. However, the appellant has been living in the UK since the end of 1996 and I am satisfied that she has established the right to respect to a private life. Applying the five step approach in Razgar [2004] UKHL27, there would therefore be an interference with such private life, the interference would be in pursuit of a legitimate aim and would be in accordance with the law. The question therefore to be decided is whether such interference is proportionate to the legitimate public end sought to be achieved, in this case immigration control.

27. Conducting the balancing exercise, the appellant has been studying for ten years but she is not doing anything at the moment. She has done some voluntary work in the past and has a close connection with her local church. That seems to be the extent of her private life. There is no evidence that she has strong social and economic ties in the UK and whilst she is a person of good character and conduct, there was nothing in her case which would persuade me that removal would be disproportionate. In any event, she has large members of her family living in Jamaica and although she herself has no property there, it would not be unreasonable or harsh to expect the appellant to be removed to Jamaica, even although she has been living in the UK for ten years. She is a woman now aged 54 and she has spent the first 42 years of her life in Jamaica. The appellant claimed in her witness statement that she has formed many meaningful long term relationships in the UK but did not elaborate upon this. She said she was receiving support from her local church and also her sponsor but there is no real reason why she could not continue to resume life in Jamaica, especially with the various qualifications which she has not obtained. I therefore find that conducting the balancing exercise, it would be entirely proportionate for the appellant to be removed to Jamaica as the factors in favour of her remaining here are outweighed by the need to maintain immigration control."

Gregory Edwards: the facts and the decision under appeal

11. Mr Edwards was born in 1975. He is a national of both Jamaica and Canada. He arrived in the UK on 13 September 1997 and was granted leave to enter as a short-term student until 31 October 1998. He was granted leave to remain as a student from time to time during the following years. On 28 April 2006, he was granted leave to remain until 30 January 2007. He then failed to apply for leave to remain as a student again until 9 March 2007. He was then granted further leave to remain as a student from 10 April until 31 October 2007 and yet further leave to remain as a student until 24 October 2008.
12. On 14 August 2008, he applied for indefinite leave to remain under para 276 of the HC 395. On 24 November 2008, the Secretary of State refused his application on the grounds that he had not been in continuous lawful residence for 10 years. The interval between the expiry of the leave on 30 January 2007 and his application for further leave on 9 March 2007 was 38 days.
13. On 4 December 2008, Mr Edwards appealed against the decision of the Secretary of State. In a determination promulgated on 19 January 2009, his appeal was dismissed by IJ North. He held that the claim did not succeed under the rules or under any policy published by the Secretary of State. He then considered and rejected the claim based on article 8 of the ECHR. On 22 January 2009, Mr Edwards applied for a reconsideration of IJ North's determination. SIJ Eshun refused to order reconsideration since in his opinion IJ North's determination did not disclose an arguable error of law. Mr Edwards renewed his application for reconsideration. On 11 March HH Judge Mackie QC ordered reconsideration on the grounds that it was arguable that the policy relied on by Mr Edwards was still in force at the time of his application for indefinite leave to remain. He said, however, that the article 8 claim was without merit for the reasons stated by IJ North.
14. The reconsideration hearing took place on 12 May before SIJ McKee who in a Determination promulgated on 19 May decided that IJ North had not erred in law. He ordered that IJ North's determination should stand.
15. It seems to have been accepted on behalf of Mr Edwards before SIJ McKee that he had not satisfied the 10 years continuous lawful residence requirement stated in para 276B(i)(a). Argument was focused before SIJ McKee (as in this court) on the scope and meaning of any relevant Concession published by the Secretary of State. SIJ McKee noted that the LRC was no longer on the Home Office website by the time the appeal process had started: it is now accepted that it was withdrawn in March 2006. Reference was made to a "Casework Instruction" dated 9 September 2008 which was primarily concerned with absences abroad. It did, however, contain a brief reference to in-country cases: "Any gaps in valid leave while the applicant was in the UK should be considered to have broken continuous lawful residence". It was this reference which led SIJ McKee to say at para 4 of his Determination:

"If the immigration judge had noticed that brief reference it would only have reinforced the conclusion which he came to on the basis that there was no relevant policy before him, indicating that a gap between periods of leave while the applicant was in the United Kingdom might be waived. There was certainly no evidence before the judge to show that, either at the date of decision in November 2008 or at the date of hearing in January 2009, there was in force a policy under which the five-week gap in the appellant's continuous leave (from 30^th January to 9th March 2007) should or might have been disregarded. It cannot therefore be the case that the judge was wrong in law when he concluded that "the appellant has not shown that the respondent's decision was made otherwise than in accordance with the law".

16. Mr Edwards' legal representative relied on the April 2009 version of chapter 18 of the IDIs to which I have already referred. Of this, SIJ McKee said:

"6. This new Chapter 18 does not, in my judgment, assist the appellant in establishing that IJ North made an error of law. It was not before him, and its date of April 2009 is later than both the date of decision and the date of hearing. There is nothing to show that anything like the guidance to caseworkers given at 2.3.3 was available at either of those dates. Even if there was, nothing like the "extenuating circumstances" envisaged in the guidance has been put forward by the appellant. His grounds of appeal simply say, in respect of the gap between 30^th January and 9^th March 2007, that the Secretary of State did not take issue with it, but granted the appellant further leave from 10^th April 2007. Has the appellant had anything to say about it elsewhere? In a statement which he prepared for the appeal, the appellant explains why there were two gaps in his continuous leave. The first, of course, was not counted against him by the judge. Of the second, he says only this:

"On the second occasion, I was extremely anxious that I might not have been able to complete the development of the statistical models, which would have invalidated my entire research project".

7. It strikes me as highly unlikely that this explanation would have been accepted by a caseworker as "extenuating circumstances". Two of the examples given for the caseworker's benefit assume that the application for further leave has been sent off within ten days of the applicant's leave running out, and that further delay has been caused by events outside the applicant's control – a postal strike or an administrative error at the Home Office. The third example is where the applicant is physically incapable of making the application, because he is confined to a hospital bed. The explanation given by this appellant, that he was "extremely anxious" about his research project, is unlikely to have impressed either the first-instance caseworker or the Senior Caseworker who would have had to be consulted before a favourable exercise of discretion could be authorised."

17. As for the article 8 point, SIJ McKee said at para 8:

"Miss Smith would have liked to argue that the appellant's "near-miss" under the Long Residence Rule made his private life claim under Article 8 all the stronger, but in ordering reconsideration His Honour Judge Mackie described the Article 8 claim as "without merit". A review was ordered only on the question whether there was a policy to waive gaps in lawful residence which was in force and which the immigration judge should have taken into account. So the Article 8 claim cannot be revived at the "first stage" of the reconsideration."

18. Like Ms Drysdale, Mr Edwards appeals with the permission of Elias LJ.

The issues arising on this appeal

19. The first issue, which is common to both appeals, is whether, on the true construction of para 276B(i)(a), a person is to be treated as having had at least 10 years continuous lawful residence in the UK even if he has been an overstayer for a period of a few weeks in circumstances such as occurred in both of these cases. The second issue is whether IJ Khan was right to dismiss Ms Drysdale's article 8 claim. The third issue is whether SIJ McKee was right to dismiss the appeal of Mr Edwards on the basis of chapter 18 of the IDI published in April 2009.

The true construction of para 276B(i)(a) of HC 395

20. Mr Manjit Gill QC (whose submissions were adopted by Mr Jones on behalf of Mr Edwards) argues on behalf of Ms Drysdale as follows. It is necessary to construe the rule against the relevant background: see per Lord Brown of Eaton-under-Heywood in Mahad v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48 at [10]. Mr Gill does not submit that the rule should be interpreted compatibly with article 8 of the ECHR. He reserves his right to advance that argument in the Supreme Court. It is a point left open by that court in Mahad at [31].
21. In support of the submission that short periods of unlawful residence should be ignored for the purposes of rule 276B(i)(a), he makes the following points. First, the rule (which was first introduced on 1 May 2003) should be construed against the background that the LRC had been in existence since the mid-1980s. The principle had, therefore, been accepted since before the rule was introduced that certain gaps in the lawfulness of continuous residence were to be ignored for the purposes of the continuous residence rule. The rule should be construed consistently with the LRC. Secondly, the grant of leave to remain pursuant to an application made after a previous leave to remain has expired takes effect from the date of expiry of the previous leave to remain. In other words, the grant of leave to remain in such circumstances cures the unlawfulness. Thirdly, the definition of what constitutes lawful residence in rules 276A(b) is not exhaustive. Fourthly, if a person is an overstayer, he commits a criminal offence: see section 24(1)(b) of the Immigration Act 1971. There is, therefore, no need to adopt a literal and strict interpretation of "continuous lawful residence". Overstayers can be prosecuted and removed. Finally, the strict interpretation adopted by the judges in the present cases leads to absurd and unfair results. Thus, an applicant who is one day late in submitting his application becomes an overstayer and loses the benefit of the continuous lawful residence rule even if he has been in continuous residence in the UK for a period well in excess of 10 years and has been a model resident. That cannot have been intended by the draftsman of the rule. The policy of the rule is not to exclude a person who has been in the UK for 10 years and whose presence here cannot sensibly be described as unlawful.
22. Mr Gill did not develop orally a further submission which he advanced in his skeleton argument. This is that para 276B(i)(a) should be disapplied in so far as it applies to periods of residence prior to its introduction on 1 April 2003. In my judgment, he was right not to develop the retrospectivity argument for a number of reasons. It is sufficient to refer to the House of Lords decision in Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230, in which it was made clear that immigration rules are merely an indication of how, at any one time, the Secretary of State intends to exercise his or her discretion and are therefore essentially statements of administrative policy. Consequently, an applicant has no vested right to have his application determined in accordance with the rules in force at the time the application was made: see also per Laws LJ in LL (China) v Secretary of State for the Home Department [2009] EWCA Civ 617 at [19]. Changes in immigration rules take effect whenever they say that they take effect, unless there is a statement to the contrary. There is no such contrary statement in para 276.
23. I turn to the arguments that Mr Gill did develop. He accepts that para 276B(i)(a) cannot be construed by reference to the LRC or any other statement of policy: see per Lord Brown in Mahad at [10]. It seems to me, however, that by contending that the rule should be construed consistently with the LRC, Mr Gill is in effect seeking to use the LRC to construe the rule. But the rule and the concession serve different purposes. The rule prescribes in clear terms the requirements for the discretionary grant of indefinite leave to remain on the ground of long residence. The LRC gives information as to how the discretion is exercised and states (as a matter of concession) what breaches of conditions may "for the purposes of this concession" be considered as lawful. These include "a short delay in submitting an application, provided the application is subsequently granted". This provision of the LRC is a concession from the rigours of the rule. The LRC indicates the possibility of condoning short delays in the submission of applications for leave to remain, delays which, under the rule, would be fatal to an application for indefinite leave to remain after 10 years lawful continuous residence. In my judgment, the LRC is irrelevant to the construction of the rule.
24. As for Mr Gill's second argument, the grant of leave to remain pursuant to an application made after the expiry of a previous grant of leave to remain plainly does not operate to legalise the applicant's residence during the period between the expiry of the earlier leave to remain and the subsequent grant of leave to remain. It could only have that effect by reason of some express provision or by necessary implication. It cannot arise from the mere fact that the later leave is given. There is no such express provision and Mr Gill has identified nothing from which any such implication can necessarily be derived. The later grant of leave to remain says nothing about the lawfulness or the duration of the applicant's previous residence in the UK. It merely says that the applicant is entitled to have leave to remain for a specified future period.
25. As for Mr Gill's third argument, the definition of "lawful residence" in para 276A(b) clearly is exhaustive. The rule says that "lawful residence means residence which is continuous residence pursuant to" (emphasis added): it then gives three categories of case. It does not say that lawful residence includes these three categories.
26. As regards the fourth argument, it is true that if a person is an overstayer, he may face sanctions, including a penalty for a criminal offence. But that is no reason for giving a strained and artificial meaning to the clear words of para 276B(i)(a).
27. Finally, I see nothing absurd in giving the rule its plain and ordinary meaning. The case of the applicant who submits his application one day late is catered for by an application of the principle de minimis non curat lex (the law is not concerned with very small things).
28. In my judgment, IJ Khan's conclusion at para 18 as to the true construction of para 276B(i)(a) was correct. There is no reason not to give the language of the rule its plain and ordinary meaning. Nor do I consider that the de minimis principle can be applied to save the appeals of either Ms Drysdale or Mr Edwards.

Ms Drysdale's article 8 claim

29. Mr Gill submits that IJ Khan erred in law in rejecting the appeal under article 8. The article 8 claim was advanced on the basis that the refusal of Ms Drysdale's application for indefinite leave to remain breached her right to respect for her private life. IJ Khan rightly acknowledged that she had established a right to respect for her private life. Mr Gill submits that the judge erred in holding that the interference with that right was proportionate to the legitimate aim of maintaining immigration control. In particular, he submits that the judge failed to take into account the following material factors in reaching his decision.
30. Ms Drysdale had been continuously in the UK for about 12 years. During that time, she had built up economic and social links in the UK, and formed a number of strong relationships. She is a woman of good character and has been economically self-sufficient throughout her stay here. With the exception of two short periods, she was lawfully resident in the UK during the whole of that period. The breaches of immigration control that occurred on these two occasions had been condoned by the grant of leave to remain. All her applications for leave to remain as a student had been granted. She had not been served with any form of enforcement process at any time during her residence in the UK. Although the LRC had been withdrawn at the time when the application for indefinite leave to remain was made, it was in force at the time when Ms Drysdale made her two late applications for leave to remain as a student. Mr Gill submits that IJ Khan was wrong not to take into account the rules and policy concessions during the relevant period of residence. He relies on GK (Long Residence—Immigration History) Lebanon [2008] UKAIT 00011.
31. In short, Mr Gill submits that, if IJ Khan had taken these factors into account, he would have been bound to conclude that, in deciding the question of proportionality, the balance should have been struck in favour of Ms Drysdale.
32. I would reject this ground of appeal. The judge was plainly aware of the fact that Ms Drysdale had been in the UK since December 1996. He said so in terms in para 26 of his Determination. It is also obvious that he was aware of the fact that she had been lawfully present throughout the 12 year period with the exception of the two periods to which I have already referred. This must have been in his mind, because the whole of the first part of his Determination was concerned exclusively with the para 276B(i)(a) issue.
33. It is true that the judge did not refer to the LRC in his discussion of the article 8 claim. In my judgment, it was irrelevant. It is nothing to the point that, if Ms Drysdale had been in continuous residence before the LRC was withdrawn in March 2006, she might have been able to take advantage of its terms. The short answer to Mr Gill's point is that she had not been in continuous residence before the LRC was withdrawn. In any event, I consider it very unlikely that the Secretary of State would have considered that this case qualified for the discretionary exercise of para 3 of the LRC, since the delay in submitting the two applications (especially the 7 weeks delay in 2003) could hardly be described as "short".
34. The reliance on GK is misconceived. At para 28 of the Determination in that case, SIJ Storey said that when issues arise as to whether a person satisfies the long residence provisions:

"careful attention must be paid to the immigration law applicable during the relevant period or periods of residence. Where such issues arise, they cannot be answered simply by looking at the current law. In this case, establishing what was the applicable law at the relevant time has proved relatively straightforward".

35. That is obviously right. The lawfulness of a person's residence at any given time must be judged by reference to the law in force at that time. This may be different from the law in force at the date when the question of whether the person has had at least 10 years continuous lawful residence falls to be determined. I do not see how this assists the case of Ms Drysdale.
36. The reason why this article 8 claim failed was that, as explained by the judge at para 27 of his Determination, her right to respect for private life in the UK was weak. She had been studying for 10 years, but was not doing anything else at the time of the hearing. She had done some voluntary work and had a close connection with her local church. That was the extent of the evidence of her private life. There was no evidence that she had strong social or economic ties in the UK. The judge expressly took into account the fact that she was a person of good character. In weighing her right to respect for her private life against the public interest in maintaining immigration control, he concluded that it was not disproportionate for Ms Drysdale to be removed to Jamaica, where she had spent the first 42 years of her life. In my view, he was entitled to do so.
37. In my judgment, the challenges to the article 8 decision fail.

The appeal of Mr Edwards: chapter 18 of IDI April 2009

38. Mr Jones accepts that the LRC had been withdrawn by the time of the refusal of indefinite leave to remain in November 2008. The focus of his challenge before us has been on paras 6 and 7 of the Determination of SIJ McKee. His main submission is that, although the new chapter 18 introduced in April 2009 post-dated the Secretary of State's decision and the Determination by IJ North, it was in force at the date of the reconsideration by SIJ McKee and should have been considered and applied by him. Mr Jones relies on section 85(4) of the Nationality, Immigration and Asylum Act 2002 which provides that on an appeal against a decision, the AIT "may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision". Mr Jones submits that this provision entitled SIJ McKee to consider evidence concerning the new chapter 18.
39. I cannot accept this submission. Mr Jones rightly accepts that section 85(4) does not entitle the AIT to decide an appeal by reference to rules which come into force after the date of the decision which is under appeal. The lawfulness of such a decision must be judged by reference to the law as it stood at the time when the decision was made. In my judgment, by parity of reasoning, the lawfulness of the decision must be judged by reference to the Secretary of State's policy described in the IDIs that were published at the time when the decision was taken, and not IDIs which were published at a later date. Section 85(4) is concerned with what evidence may be taken into account which may bear on the decision under appeal. The purpose of the subsection is to enable the AIT to have regard to the most recent factual material about the circumstances of the appellant and the situation in the country to which, if the appeal is dismissed, he is likely to be removed. In enacting section 85(4), I do not consider that Parliament had in mind rules or policy documents.
40. This view coincides with that expressed by the AIT (SIJ Storey and SIJ Grubb) in SA (long residence concession) Bangladesh [2009] UKAIT 00051 at para 24, a decision to which reference was not made during the hearing before us.
41. I would, therefore, hold that SIJ McKee was not entitled to have regard to the new chapter 18. That was his view too. But he went on to say in any event that the new chapter 18 did not assist Mr Edwards'case. This was a case of a single gap of 38 days. Accordingly, on the basis of para 2.3.3 of chapter 18 of the April 2009 IDIs, the discretion could be exercised only if there were "extenuating" reasons for the delay in making the application for an extension of the leave to remain. At para 6 of his Determination, SIJ McKee gave detailed and, in my judgment, entirely convincing reasons for concluding that it was highly unlikely that the explanation given by Mr Edwards for the delay in his application would not have been accepted by a caseworker as an extenuating reason.
42. It follows that I would dismiss the appeal of Mr Edwards.

Overall conclusion

43. For these reasons, I would dismiss both appeals.

Lord Justice Longmore: I agree

Sir Mark Potter: I also agree