Nigerian tutor just short of 10 years’ residence in UK loses appeal on indefinite leave to remain application

About this case:

• Citation:
  [2022] CSIH 12
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Turnbull

The petitioner and reclaimer, Ifeoma Mbombson, had been lawfully resident in the UK for nine years and ten months when she submitted an ILR application in August 2018. She argued that there was a realistic prospect that an immigration judge would consider that her activities in Glasgow reduced the weight to afforded to the goal of immigration control.

The appeal was heard by Lord Turnbull, Lord Woolman, and Lord Doherty. Forrest, advocate, appeared for the petitioner and Pirie, advocate, for the respondent.

Career difficulties

The petitioner initially entered the UK on a student visa in September 2008. Following her graduation, she was employed by a company as a sessional tutor contracted to a minimum of six hours per week at Glasgow International College, and also engaged in public engagement activities for the University of Glasgow, where she had studied for a PhD, and other colleges in the UK.

Prior to the expiry of her final visa on 22 July 2017, the petitioner submitted an application for indefinite leave to remain on the basis of having established a private life in the UK. This application was refused on 30 July 2018, to which date her leave to remain in the UK was extended by virtue of making her application before her previous period of leave expired.

On 13 August 2018, the petitioner made another ILR application on the basis of long residence. However, this application was also refused as she had not been resident for a period of 10 years. On 19 March 2020 the petitioner made a further application submitting that it would be incompatible with her article 8 rights for the respondent to remove her from the United Kingdom. In rejecting this application, the respondent concluded that her submissions would have no realistic prospect of success before an immigration judge.

The petitioner thereafter raised a petition for judicial review seeking reduction of that decision, in which she argued that the small margin by which she had failed to meet the residence requirement had to be seen alongside the difficulties she would have progressing her career as a college teacher in Nigeria. The Lord Ordinary held that due regard had been held by the respondent to these potential difficulties, and therefore the petitioner did not have a reasonable prospect of establishing an error of law made by the decision maker.

Counsel for the petitioner submitted on appeal that the loss to the community of the petitioner’s services was an important factor to be assessed in determining the weight to be accorded to the public interest in any article 8 assessment. The respondent had taken no account, or insufficient account, of the loss of value to be suffered by the petitioner’s students and professional colleagues in rejecting her claim.

Cannot be criticised

Lord Turnbull, delivering the opinion of the court, began by observing: “A failure to meet the requirements of the Immigration Rules by a small margin [is] not [a] relevant issue for consideration by the Secretary of State. What she required to give weight to was any factor weighing against the policy reason relied upon to justify an interference with family life as protected by article 8 [of the ECHR].”

He continued: “The sole remaining argument relied upon was that the respondent had failed to take account of the value of the petitioner’s contribution to education in the United Kingdom. This did not feature in the petition or in the grounds of appeal. Nor was it argued before the Lord Ordinary. Counsel for the respondent was therefore well-founded in relying on the authority of Prior v Scottish Ministers (2020) and submitting that the court should take no account of this argument.”

Examining the petitioner’s contributions to her community, Lord Turnbull said: “It seems clear that the petitioner devoted herself conscientiously to her studies in this country; that her teaching has been appreciated by her students here; and that she has also made further positive contributions to community life. On the material available to us she appears to be an admirable person. However, the passages in the decision letter to which attention was drawn make it plain that the Secretary of State did take account of the contribution which the petitioner had made to the community.”

He concluded: “She was entitled to conclude that the petitioner’s case was not one of the relatively few instances in which the contribution made outweighed the legitimate policy of immigration control. Taking account of the fact that little weight could be given to the petitioner’s private life, since it was established at a time when her immigration status was precarious, the respondent’s conclusion that there were no realistic prospects of a successful challenge before an immigration judge cannot be criticised.”

The petitioner’s reclaiming motion was therefore refused.