Os (10 Years’ Lawful Residence)
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 20 March 2006 |
| Neutral Citation | [2006] UKAIT 31 |
| Court | Asylum and Immigration Tribunal |
| Date | 20 March 2006 |
[2006] UKAIT 31
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton (Deputy President)
Mr A A Wilson (Designated Immigration Judge)
Mr J W H Law (Immigration Judge)
For the Appellant: Mr Vokes, instructed by Nelsons Solicitors
For the Respondent: Mrs K Heath, Home Office Presenting Officer
OS (10 years' lawful residence) Hong Kong
Paragraphs 276A-D of HC 395 stand alongside the published 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.
The Appellant is a British National (Overseas) from Hong Kong. He appealed against the decision of the Respondent on 7 September 2005 refusing to grant him indefinite leave to remain in the United Kingdom on the grounds of ten years' lawful residence here. His appeal was allowed by an Immigration Judge, Mr D Taylor, but reconsideration was ordered at the instance of the Respondent on the ground that it was arguable that the Immigration Judge had erred in his interpretation of paragraph 276A of the Immigration Rules HC 395. Thus the matter is before us.
There is no doubt about the facts. The Appellant has been engaged in education in the United Kingdom since 1995 when he came here aged ten in order to attend school. He has been absent from the United Kingdom for a number of short periods associated with school and college holidays. It is not suggested that as a whole those periods are sufficient to prevent him being regarded as having been continuously resident in the United Kingdom since early 1995. There are, however, three periods of absence which cause a particular difficulty. First, in the summer of 1996 (when he was aged twelve) he had leave to remain until 30 June. He did not depart until 3 July. He returned on 9 September, and was granted leave to enter apparently without any difficulty. Secondly, in the summer of 1997 he had leave to remain until 31 October. He did not depart until 6 December. On his return on 5 January 1998 he was granted leave to enter, again apparently without any difficulty. Thirdly, in the summer of 2002 he had leave to remain until 3 September. He appears to have remained in the United Kingdom until some time in December. When he returned on 14 January 2003, he was granted leave to enter, again apparently without any difficulty.
The grant of indefinite leave to remain to those who have had ten years' lawful residence in the United Kingdom has its origin in a long-standing concession outside the Immigration Rules. On 1 April 2003, paragraphs 276A-276D were inserted in HC 395 under the general heading “Long Residence”. We shall set out only those parts which are relevant to this appeal. Paragraph 276A contains definitions. “Continuous Residence” is defined as meaning:
“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 appellant is absent from the United Kingdom for a period of six 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”,
but the paragraph goes on to provide that continuity shall be considered to have been broken in a number of circumstances, none of which is said to apply to this Appellant. By the terms of paragraph 276A(b), “lawful residence” means:
“residence which is continuous residence pursuant to:
(i) existing leave to enter or remain; or
(ii) temporary admission within s11 of the 1971 Act where leave to enter or remain is subsequently granted;
…”
Paragraph 276B provides that 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 he has had at least ten years continuous residence in the United Kingdom and that “ having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain”, various grounds being there set out.
As we have indicated, the practice of granting indefinite leave to remain originated in a concession. At the hearing before the Immigration Judge, the Home Office Presenting Officer stated that the concession had been withdrawn when the rules relating to long residence were introduced. That was not true. Not only had the concession not been withdrawn then, but we were told by both parties before us that on 28 February 2006 the concession still appeared on the Home Office website, within the Immigration Directorate's instructions. The chapter in question is Chapter 18, headed “The Long Residence Concession” and the version we have seen is dated September 2004. It begins, rather surprisingly, as follows:
“1. Introduction
There is no provision within the Immigration Rules for a person to be granted indefinite leave to remain solely on the basis of the length of his or her residence. The grant of indefinite leave to remain on the basis of lengthy continuous residence is discretionary, each case should be considered on its merits.”
There is a note on background and there are further provisions of which we give edited extracts for present purposes as follows:
“2. Considerations
When considering an application, where a person has 10 years or more continuous lawful residence, … indefinite leave to remain should normally be granted in the absence of any strong countervailing factors [none of which are said to exist in the present case].
Applications from people who have not completed 10 years continuous lawful residence should normally be refused, unless there are very strong compelling circumstances. …
3. Lawful 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 made for the purposes of this concession be considered as lawful:
• A short delay in submitting an application, provided the application is subsequently granted;
…
5. What constitutes Continuous Residence
Continuity need not be broken by a small number of short absences abroad of up to six months at any one time during the 10 year period. These absences should normally be ignored, unless such trips are frequent. … In each case the strengths that the ties to the United Kingdom, the reason for, and effect of the absence should be taken into account.
…
10. Refusal of Indefinite Leave to Remain
Applications that do not meet the criteria set out in the above paragraphs should normally be refused unless the circumstances are particularly exceptional and it would, in view of those exceptional circumstances be unreasonable to consider removal. Any case where it is proposed to refuse the application despite the lengthy residence should be referred to a senior officer.
Applications for indefinite leave to remain on the basis of long residence which fall for refusal should be refused under Paragraph 322(1) of HC 395 (no provision in the Rules).”
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