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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 >> KI (Nigeria) v Secretary of State for the Home Department [2015] EWCA Civ 255 (19 February 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/255.html Cite as: [2015] EWCA Civ 255

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2A 2LL
		19 February 2015

LORD JUSTICE RICHARDS:

1. This is an immigration case in which a very long delay by the Secretary of State in reaching a decision on an application for leave to remain gave rise to an issue as to which version of the Immigration Rules applied to the determination of the question whether leave to remain should be granted. The First Tier Tribunal ("the FTT") allowed the appellant's appeal against a decision refusing leave to remain. That determination was reversed by the Upper Tribunal ("the UT"). An appeal is now brought to this court with permission granted by Underhill LJ. In the event, as I will explain, the main issue in the appeal can be seen to have been resolved by the judgment of Underhill LJ himself in the case of Singh v Secretary of State for the Home Department [2015] EWCA Civ 74. The present appeal becomes in essence an application on particular facts of the decision in Singh.
2. The appellant has appeared today in person. having been represented by counsel at the permission stage. Entirely understandably, he has not been able to add materially to the legal argument, but he has gone through the factual history, underlining some of the facts in support of his case and especially the issue of the deplorable delay in the decision making process and the effect that this has had on him. He is very emotional about the factual history and the impact of the delay upon him, but I believe he understands that the decision for this court is one of law; that we are concerned with whether there was a material error of law in the decision of the UT which is under appeal. We are not here to reach a fresh decision of our own on the facts which he has outlined so graphically to us.

The facts

3. I take the main part of the appellant's immigration history from the findings of the FTT, whilst bearing in mind the factual exposition given by the appellant personally today. He is a Nigerian national who came to this country in August 1998 at the age of 27 as an illegal entrant. In January 2001 he made an application for asylum which proved unsuccessful. In February 2001, following the making of that application, he was served with a notice on Form IS151A informing him that he did not have leave to be in the United Kingdom and that he was liable to detention and removal.
4. In November 2011 he married a British citizen, and the following month he made an application for leave to remain as the spouse of a person present and settled in the United Kingdom. The Home Office did not have a record of that application but the FTT accepted that the application had been made. In any event, in May 2003, before the application had been dealt with, the appellant's wife sadly died while on a trip to Nigeria.
5. In May 2004 the appellant made a fresh application for leave to remain, this time as a bereaved spouse under paragraph 287(b) of the Immigration Rules. Through no fault of his and despite repeated prompting by him, the Secretary of State did not reach a decision on that application until 12 March 2013. In the intervening period of almost nine years there were various changes both in the appellant's personal circumstances and in the relevant Immigration Rules.
6. So far as personal circumstances are concerned, the main developments were these. First, he remarried. His new wife had come from Nigeria to this country in 1997 on a visitor's visa to work as a housemaid but had subsequently run away from her employment as a result of ill treatment. The appellant met her in London in 2006. They subsequently had three young children together, aged respectively some five years, four years and ten months at the time of the FTT's determination.
7. Secondly, the appellant set up his own security business, which had 15 employees at the time of the FTT's determination.
8. Thirdly, in April 2010, he pleaded guilty to criminal offences connected with that business. There were two counts relating to non-payment of the minimum wage to employees, on each of which he was fined £500, and there was one count of VAT fraud for which he was sentenced to 18 months' imprisonment suspended for two years. He was also ordered to pay a total of £20,000 by way of compensation. He has told us that his business was subsequently closed down, depriving him of the ability to meet the compensation payments and indeed, as he says, to make proper provision even for his family to be fed.

The Immigration Rules

9. I turn to describe the relevant Immigration Rules as they existed at various times. First, at the time of the 2004 application as a bereaved spouse, paragraph 287(b) provided:

"The requirements for indefinite leave to remain for the bereaved spouse or civil partner of a person who was present and settled in the United Kingdom are that: (i)(a) the applicant was admitted to the United Kingdom ... or given an extension of stay for a period of 12 months as the spouse ... of a person present and settled in the United Kingdom ... ; (ii) the person whom the applicant was admitted or granted an extension of stay to join died during that [two-year] period; (iii) the applicant was still the spouse ... of the person he or she was admitted or granted an extension of stay to join at the time of the death."

10. In July 2008 the rule was amended to substitute for the period mentioned in subparagraph (i) a requirement that the person had been admitted to the United Kingdom for a period not exceeding 27 months or given an extension of stay for a period of two years.
11. I should consider next the question of long residence. Prior to July 2012, paragraph 276B set down the requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom. They included the requirement to have had at least 14 years' continuous residence in the United Kingdom, excluding any period spent here following service of notice of liability to removal. They also included a provision that, having regard to the public interest, there were no reasons why it would be undesirable for the applicant to be given indefinite leave to remain on the ground of long residence, taking into account among other matters his previous criminal record and the nature of any offence of which he had been convicted.
12. In July 2012 major changes were introduced by a Statement of Changes in Immigration Rules presented to Parliament and published as HC 194. The main effect of those changes was to bring substantially within the scope of the rules the consideration of applications based on private or family life under Article 8 of the European Convention on Human Rights. I do not propose to go into the detail of the new rules but should note just a few points. In Part 7 of the rules there was inserted a new paragraph 276ADE containing the requirements to be met by an applicant for leave to remain on the ground of private life. They included a requirement for him to have lived continuously in the United Kingdom for at least 20 years. In Part 8, provision was made for the insertion of a new Appendix FM relating to applications based on family life and containing numerous detailed specific requirements.
13. The introductory text of HC 194, under the heading "Implementation", stated that if an application for leave to remain had been made before 9 July 2012 and had not been decided, it would be decided in accordance with the rules enforced on 8 July 2012. There were also more specific transitional provisions within the new rules themselves. I can pass over most of them and indeed I can pass over all of them in the form that they took as at 9 July 2012, because they were amended again by a further Statement of Changes, HC 565, which took effect on 6 September 2012. The changes introduced by HC 565 included a new paragraph A277C. That paragraph was amended yet again with effect from 14 December 2012 by a further Statement of Changes, this time HC 760. Whilst the amendment to the previous version is not itself material, it is sensible to set out the paragraph in its amended form since that is the version applicable at the date of the decision in the present case. It reads:

"Subject to paragraphs A277 to A280 and paragraph GEN.1.9. of Appendix FM of these rules, where the Secretary of State deems it appropriate, the Secretary of State will consider any application to which the provisions of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules do not already apply, under paragraphs R-LTRP.1.1.(a), (b) and (d), R-LTRPT.1.1.(a), (b) and (d) and EX.1. of Appendix FM (family life) and paragraph 276ADE (private life) of these rules. If the applicant meets the requirements for leave under those provisions (except the requirement for a valid application), the applicant will be granted leave under paragraph D-LTRP.1.2. or D-LTRPT.1.2. of Appendix FM or under paragraph 276BE of these rules."

14. Although the rules introduced in July 2012 and subsequently amended in the way I have described make provision in respect of applications on the grounds of private or family life and it was intended that they would reflect the requirements of Article 8 in the generality of cases, it remains open to an applicant to rely on Article 8 in a case falling outside the rules, though it should in practice be only exceptionally that an applicant will have a valid claim under Article 8 in such a case. This point is made in general terms in paragraph 3 of the judgment of Underhill LJ in Singh and is elaborated in paragraphs 60 to 67 of that judgment, where the court endorses the approach laid down by the Upper Tribunal in the case of Izuazu (Article 8 - new rules) [2013] UKUT 45 (IAC) and by the High Court in Nagre, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 7200 (Admin).
15. The effect of Izuazu in summary is that judges called on to make decisions about the application of Article 8 in cases to which the new rules apply should proceed first by reference to the relevant new rules themselves, but if the applicant does not meet the requirements of those rules they should go on to make an assessment of Article 8 applying the criteria established by law. In paragraph 29 of his judgment in Nagre, Sales J (as he then was) explained:

"Nonetheless, the new rules do provide better explicit coverage of the factors identified in case-law as relevant to analysis of claims under Article 8 than was formerly the position, so in many cases the main points for consideration in relation to Article 8 will be addressed by decision-makers applying the new rules. It is only if, after doing that, there remains an arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8 that it will be necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the new rules to require the grant of such leave."

Sales J went on to make a further slight modification of the approach in Izuazu which it is unnecessary to address for present purposes.

The Secretary of State's decision

16. With that introduction I return to the history of this case. The Secretary of State's decision of 12 March 2013 refused the appellant's application for leave to remain as a bereaved spouse, on the ground that he failed to meet the requirements at paragraph 287(b). The decision went on to consider his case under Appendix FM and paragraph 276ADE of the new rules, holding that the requirements of those provisions were not met. Because of the delay in considering the application, consideration was also given to chapter 53 of the Enforcement Instructions and Guidance and paragraph 353B of the rules, but it was decided that a grant of discretionary leave to remain on exceptional grounds pursuant to those provisions was not appropriate.

The FTT's determination

17. The appeal against that decision was made to the FTT and was heard by First Tier Tribunal Judge Colvin. In her determination promulgated on 6 August 2013 she held first that the appellant's application for leave to remain as a bereaved spouse must fail because he could not satisfy the requirements of paragraph 287(b). It is sufficient to refer to her finding that he did not have the requisite period of leave to be in the United Kingdom. She referred in fact to the period specified in the 2008 amendment to paragraph 287(b) but since the appellant did not have any leave he could not meet the requirement even as the paragraph stood at the date of his application.
18. The judge next considered the issue of long residence under paragraph 276B. Notwithstanding that the appellant had made no application under that paragraph she found that he had been in the United Kingdom for a continuous period of over 14 years at the date of the Secretary of State's decision and that his conviction did not make it undesirable for him to be given indefinite leave to remain on the ground of long residence. She held therefore that he qualified under paragraph 276B.
19. She went on to say, however, that this could not apply to the appellant's wife and children so that it was necessary to consider Article 8 as well. She continued:

"I find that the new Immigration Rules relating to Article 8 which came into force in July 2012 do not apply to the appellant and his family as this application was made long before they came into force. If I am wrong in this, it is accepted that the appellant and his family cannot meet the requirements of the new Rules so that it is still necessary to consider Article 8 more generally."

20. In the following paragraphs she gave brief details of the family and its circumstances, finding that the family had clearly established itself in the United Kingdom and that this in significant part had been allowed to happen because of the nine-year delay on the part of the Secretary of State in dealing with the 2004 application as a bereaved spouse. The delay also meant that the public interest in effective immigration controls had been "somewhat undermined" in this case. The judge concluded that it would be disproportionate to return the family to Nigeria and therefore allowed the appeal under Article 8 as well as under paragraph 276B.

The UT's determination

21. The Secretary of State was granted permission to appeal to the UT against that determination. The appeal was heard by Deputy UT Judge Woodcraft, whose determination was promulgated on 1 November 2013. The first issue he had to consider was whether the FTT's determination should be set aside for material error of law. He held that it should be. The errors of law he identified related both to the treatment of long residence and to the treatment of the Article 8 issues. As to the former, he said this at paragraph 28 of his determination:

"The Judge had allowed the appeal under both the Immigration Rules and Article 8. As she had specifically dismissed the appeal under the bereavement provisions, the only basis on which she could have allowed the appeal under the Immigration Rules was on the basis of a long residence application. However, no long residence application has been made prior to July 2012. The Judge was considering the application at the hearing in July 2013 on the basis of the Rules which has long since been repealed. Furthermore, the Judge appears to have overlooked that the Appellant had been served with form IS151A on 3^rd February 2001 (after making his asylum application). This had had the effect of stopping the clock. It meant that by the time of the hearing before the Judge in July 2013 the Appellant had only had twelve years of residence, not fourteen. Even if the Judge had been able to allow the Appellant to make an application under the long residence Rules at the hearing and apply Rules at the hearing which had already been repealed, the Appellant still had not managed to obtain fourteen years of residence by the hearing. There were thus two errors in the Judge's decision to allow the appeal under paragraph 276B of the Immigration Rules."

The judge's reference to the appellant having twelve years of residence was a mistake. The effect of the Notice stopping the clock in 2001 was that he had only three years. But that mistake was not material.

22. The judge said that those errors in the FTT's determination would not necessarily be fatal if the FTT had been entitled to allow the appeal under Article 8 and had given adequate reasons for doing so. He said that the FTT judge's failure to consider Appendix FM clearly skewed her consideration of the Article 8 issues and she did not give the requirements of that Appendix due weight. He continued at paragraph 31:

"The Appellant had not made an application for leave to remain, either outside the Rules or otherwise on the basis of Article 8 prior to July 2012. He had made his application on a quite separate basis, namely as a bereaved spouse in which he could not succeed. The Appellant had no legitimate expectation that when his appeal was finally dealt with that Appendix FM would simply be disregarded and the position before Appendix FM was brought into force would be applied. Article 8 is assessed on the basis of the facts and matters at the date of the hearing and at the date of the hearing Appendix FM was in forces. There was thus a second error by the Judge in failing to consider proportionality within Article 8 in the light of the weight to be given to the fact that the Appellant could not meet Appendix FM."

23. For those reasons he set aside the FTT's determination and proceeded to rehear the matter, making clear that whilst the FTT's positive findings would stand he would have to consider the position under the Immigration Rules and Article 8 afresh.
24. On the rehearing the appellant gave evidence. Among other matters he said that he had not made a separate application on long residence grounds because he believed it was better to keep things simple. He did not believe in making multiple applications under the same name. The position therefore was that there had been no further application during the nine years between the 2004 application as a bereaved spouse and the Secretary of State's decision in March 2013.
25. Against that background the UT judge first considered the position under the rules, at paragraphs 41 to 43. He reiterated that the appellant could not succeed under the rules on either bereavement or long residence grounds. In so doing he also found that the 2001 application for leave to remain as a spouse would not necessarily have succeeded even if it had been considered promptly.
26. At paragraph 45 he turned to consider the position under Appendix FM and 276ADE; that is considering the new rules as they existed at the time of the Secretary of State's decision and the subsequent appeals. He found that the appellant could not qualify under Appendix FM since his wife was not a British citizen or a refugee or a person with settled status in the United Kingdom and there were no insurmountable obstacles to the appellant and wife returning to Nigeria. The judge evidently also considered that the appellant could not meet the requirements of paragraph 276ADE, one of which was 20 years' continuous residence in the United Kingdom.
27. The judge went on to hold at paragraph 48 that the appeal therefore turned on Article 8. He directed himself by reference to the well-known five-stage approach in Razgar, R (on the Application of) v. Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368. He held that the appellant and his family had established family life in this country which would be interfered with by requiring them to go to Nigeria. He said that such interference would have a legitimate aim since the appellant and his wife had not had any leave while in the United Kingdom. He proceeded to consider the question of proportionality. His reasoning is set out at paragraphs 50 to 57 and included the following:

"50. Is the inference with the Article 8 rights of the Appellant, his partner and children proportionate? As there are three children involved in this case I bear in mind the requirements of Section 55 of the Borders, Citizenship and Immigration Act 2009 and the need to safeguard and promote the welfare of children who are in the United Kingdom. The welfare of those children is a primary concern of this Tribunal. That is not to say it is the paramount concern but it is one which I have to consider first. The best interests of the children are served by continuing to be cared for by both parents. None of them have seen Nigeria, but they are young, they have not been here for seven years or more and they are of an age where their primary focus will be on the care given to them by their parents. Although forced return is not imminent if they were to return it would be as a unit since neither parent has any right to remain in this country. Whilst it is correct that the level of education the children might receive upon arrival in Nigeria might not be to the same standard as they could potentially hope for in the United Kingdom, they would be being educated in the parents' country of origin in a culture that would be familiar to them. Their welfare would be safeguarded.

"51. So far as the adults are concerned, I see no reason why the Appellant and his partner could not readapt to life in their country of origin. Although the Appellant made a claim for asylum on the basis that due to his Albino skin colour he would be at risk of persecution, that claim was not prosecuted successfully and has not been renewed. The Appellant states that he has obtained some educational qualifications in this country which no doubt would serve him well upon his return. I attach weight in considering proportionality that the Appellant cannot succeed under Appendix FM, has no status and that compelling circumstances must be shown to succeed outside the Rules. For the reasons I give in this determination the Appellant cannot show such circumstances."

…

"54. The Judge at first instance considered that the wider public interest did not require the Appellant to be considered as undesirable on the grounds of his conviction. That was in the context of whether the Appellant could succeed under the long residence Rule (which contains an exception based on character). I am considering the matter on a different basis. Not on whether the Appellant succeeds under the Immigration Rules but whether the fact of the Appellant's business is to be accorded such weight that its disruption by the operation of immigration law renders the Respondent's decision disproportionate. I bear in mind that the conviction was relatively recent in early 2013. Although the Appellant is making payments towards the very substantial fine imposed upon him there is a serious question mark over the way the business was conducted, particularly the payment of wages below the minimum level. I do not consider that the disruption to the Appellant's business is determinative of this appeal, or indeed is to be afforded great weight. The Appellant states that he has legal qualifications and has advised people on a pro bono basis. Yet he was not aware of the basic requirement for an employer to pay the minimum wage. In my view that undermines the Appellant's claim that the Respondent's decision breaches Article 8.

"55. On the positive side of the balance sheet (from the Appellant's point of view) is the very serious delay by the respondent in dealing with his 2004 application. As I have indicated (see paragraph 44) there is no good reason why the Respondent took the time she did. During the time it has taken the Respondent to consider the application the Appellant and his family have put down roots, both in terms of the establishment of the business and the children's schooling, although interestingly the Appellant's partner has not used the delay to make any form of application to regularise her own status. The prejudice to the Appellant and his family caused by the delay does not come within the factors outlined in EB Kosovo. The judge at first instance regarded the delay in this case as being determinative and allowed the appeal on that basis. Yet, the delay amounted to not deciding an application that was in any event bound to fail, in circumstances where (subsequently) the Appellant could not bring himself within Appendix FM and where there were other difficulties in the case which I have outlined above, such as the position of the Appellant's company.

"56. Although the Appellant did not contribute to the delay but did seek to prompt the Respondent to deal with this application, the application itself was misguided. The Appellant could and should have taken other steps to regularise his position rather than rely on an application that was bound to fail. It is apparent from the correspondence from the Respondent, (stating at various intervals that the Respondent was too busy to look at the Appellant's application), that the Appellant had various different advisers during the relevant period. His complaint about the asylum appeal relates to a firm of solicitors, Jonathan & Co, but the attempts to prompt the Respondent into dealing with the bereavement application were made by the Lambeth & South London Immigration & Welfare Consultants (who, notwithstanding their name, were based in London N1) and another firm of solicitors called Crystal Partners. Despite these different advisers the Appellant has never sought to make an application on a basis which was likely to succeed. Whilst the delay in this case is to be strongly deprecated, it is not in my view so bad that to maintain the decision to refuse undermines the legitimate aim of immigration control rather than further it. Delay of itself should not, without more, convert a bad case into a good one. The delay by the Respondent in dealing with the Appellant's application was not determinative of the appeal.

"57. There will be an interference with the Appellant's family life by the dismissal of his appeal but I find it is a proportionate interference. The Appellant's appeal in relation to his private life cannot succeed under Appendix FM. The major impact on his private life would be that he would no longer be able to continue his business. For the reasons given above I attach little weight to that aspect of the appeal. The Appellant has now been in the United Kingdom on his account (which was accepted by the Judge at first instance) for over fifteen years, but it is still not the twenty years required by Appendix FM. I do not see any reason why this appeal should be allowed outside the Immigration Rules on Article 8 considerations alone. The Appellant's status throughout has been precarious and any private life he has built up has been established in the knowledge that he had no right to stay but was only doing so while the Respondent took her time to give him an adverse decision. I dismiss the Appellant's appeal against the Respondent's decision to refuse to grant leave to remain."

The present appeal

28. I turn to consider the appeal to this court. The principal reason why Underhill LJ granted permission to appeal was that he considered that the UT was arguably wrong to hold that the appeal fell to be determined by reference to the version of the rules introduced in July 2012. The Lord Justice referred to the decision of this court in Edgehill & Anor v Secretary of State for the Home Department [2014] EWCA Civ 402 which, giving effect to the transitional provision in the introductory text to HC 194, held that in a case where an application for leave to remain has been made prior to 9 July 2012 and has not been determined, it will be decided in accordance with the old regime. That displaced the usual principle, confirmed by Odelola v Secretary of State for the Home Department [2009] UKHL 25; [2009] 1WLR 1230, that changes in the rules take effect with regard to pending as well as future applications.
29. It is clear that in identifying this issue Underhill LJ had specifically in mind the rules relating to the application of the Article 8. He noted that a possible point of distinction from Edgehill was that the 2004 application had been treated as an application under paragraph 287(b), that is as a bereaved spouse application, and did not explicitly invoke Article 8, but he was not convinced that this was a material distinction.
30. As I have mentioned at the outset of this judgment, however, that issue which prompted the grant of permission has now been resolved by the recent judgment of Underhill LJ, with whom the other members of the court agreed, in the case of Singh. The court in Singh took forward the analysis in Edgehill by considering the effect of the further changes introduced in September 2012 by HC 565. The conclusion reached is summarised by Underhill LJ at paragraph 56 of his judgment:

"(1) When HC 194 first came into force on 9 July 2012, the Secretary of State was not entitled to take into account the provisions of the new Rules (either directly or by treating them as a statement of her current policy) when making decisions on private or family life applications made prior to that date but not yet decided. That is because, as decided in Edgehill, "the implementation provision" set out at para. 7 above displaces the usual Odelola principle.

(2) But that position was altered by HC 565 – specifically by the introduction of the new paragraph A277C – with effect from 6 September 2012. As from that date the Secretary of State was entitled to take into account the provisions of Appendix FM and paragraphs 276ADE–276DH in deciding private or family life applications even if they were made prior to 9 July 2012. The result is that the law as it was held to be in Edgehill only obtained as regards decisions taken in the two-month window between 9 July and 6 September 2012.

(3) Neither of the decisions with which we are concerned in this case fell within that window. Accordingly the Secretary of State was entitled to apply the new Rules in reaching those decisions."

31. Reference can be made to the full judgment of Underhill LJ for the detailed reasoning in support of that conclusion, which I do not need to repeat here.
32. Since the decision in the present case was made in March 2013 it fell to be considered in accordance with the rules as amended by HC 565 and indeed as further amended by HC 760. By virtue of paragraph A277C as introduced by HC 565, Appendix FM and paragraph 276ADE applied to consideration of the issues of family life and private life. It follows that the Secretary of State was correct to consider Appendix FM and paragraph 276ADE in the decision under appeal and that the FTT was wrong to proceed on the basis that the new rules did not apply to the case and to consider the application of Article 8 without any regard to the new rules. The FTT was also wrong to apply paragraph 276B relating to long residence. There had been no application under that rule and the rule was no longer in force. The length of residence was now a factor for consideration under new rules relating to private life.
33. Accordingly, although his reasoning did not have the elaboration of the reasoning of the court in Singh, the Deputy UT Judge was correct in the result to identify material errors of law in the FTT's determination and to set that determination aside. The conclusion in Singh leads inevitably to that result.
34. The Deputy UT Judge was also correct then to proceed by way of a rehearing of the matter. At the rehearing he approached the relevant issues correctly. He decided that there was no basis on which the appellant could succeed in his 2004 application under paragraph 287(b) as a bereaved spouse. He was plainly right on that point and permission to appeal to this court has not been granted in relation to it. He was equally plainly right that the appellant could not succeed under the former long residence rule, paragraph 276B, for the reasons he had given in finding an error of law by the FTT on that issue. He was right to examine the issues of family life and private life first under the new rules. His conclusion that the appellant did not meet the requirements of those rules is not challenged. He was right, finally, to turn to the application of Article 8, taking into account that the appellant did not meet the requirements of the relevant rules.
35. As to his actual decision under Article 8, the grant of permission to appeal to this court left open to be canvased before us the various grounds of appeals challenging that decision. Underhill LJ adopted that course on the basis that the points in question were likely to be traversed in any event in the course of submissions on other issues, and said that it was very unlikely that he would have granted permission on those grounds if this had simply been an application about the decision on Article 8 on the assumption that the new rules applied. In the circumstances I can deal with the matter very briefly.
36. The essence of the relevant grounds of appeal is that the judge erred in his assessment of proportionality. Various factual matters are relied on: the length of time the appellant had been in the United Kingdom; the fact that he had not travelled to Nigeria or indeed outside the United Kingdom since first arriving in this country; the fact that he had put down roots here, in particular by marrying again and having three children; the fact that he had set up his own business which employed 15 people; and finally, and perhaps most importantly, the delay of nine years between the 2004 application and the making of a decision on it.
37. The difficulty facing the appellant, as it seems to me, is that all those points were taken carefully into consideration by the Deputy UT Judge in the lengthy passage of the determination from which I have already quoted. The very serious delay in making the decision was, as I have said, probably the most important individual factor. It was treated correctly as a point in the appellant's favour and was considered in detail. In the course of that consideration the judge had regard to what had been said in the case of EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] 1 AC 1159 about the various ways in which such delay can be relevant. Again, there was no material error of law in his consideration of that issue.
38. Looking at the UT's reasoning overall, I am satisfied that the conclusion that was reached on Article 8 is soundly based and that the challenge to it must fail.
39. I have dealt with all the main issues arising on this appeal. There are some subsidiary points which take the appellant nowhere and which it is unnecessary for me to address.
40. For the reasons given, I would dismiss this appeal.

LORD JUSTICE KITCHIN: I agree.

LORD JUSTICE SALES: I also agree.

Order: Application refused