Bd (Work Permit – “Continuous Period”)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Cranston,McKee |
| Judgment Date | 11 October 2010 |
| Neutral Citation | [2010] UKUT 418 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 11 October 2010 |
[2010] UKUT 418 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Honourable Mr Justice Cranston
Senior Immigration Judge McKee
For the Appellant: Mr Adam Pipe, instructed by Goshen Solicitors
For the Respondent: Mr Mark Blundell, Senior Presenting Officer
BD (work permit — “continuous period”) Nigeria
Paragraph 134 of the Immigration Rules provides for indefinite leave to be granted to a work permit holder who has spent “a continuous period of 5 years lawfully in the UK” in that capacity. Unlike the ‘long residence rule’ at paras 276A-D, no definition of this requirement is given in HC 395, and there is currently no guidance to be had from the Immigration Directorates’ Instructions. However, “a continuous period” must be construed sensibly, so as to allow periods of absence abroad. Where such absence has been required by the appellant's employer in the course of his work permit employment, it need not impair the strength of connexion to the United Kingdom which is normally established by five years’ residence.
This case raises an interesting point of construction. What does it mean to have “ spent a continuous period of 5 years lawfully in the UK”, which is required by paragraph 134 of the Immigration Rules in order to obtain indefinite leave to remain as a work permit holder?
The appellant, a citizen of Nigeria now aged 29, first came to this country thirteen years ago, at the age of 16, and after pursuing a course of studies from foundation through undergraduate to postgraduate level, he was recruited in 2004 to the ‘Global Graduate Development Programme’ of a large British company, IMI plc. A work permit was obtained for him, and for the next five years the appellant continued in approved work permit employment. Much of that period – in fact more than half – was spent abroad, posted by the company to branches of IMI in other countries, owing (as he puts it) to the ‘global nature’ of his job. But his earnings were all paid into his bank account in England, he paid UK tax and national insurance, he enrolled onto the company's UK pension plan, and indeed bought a house of his own in Wolverhampton. Normally, if a person has had leave to remain as a work permit holder for five years, and is still required for the employment in question, he will qualify for indefinite leave to remain. But when the appellant made his application for indefinite leave in September 2009, after his five years, he was refused because, although he had been a work permit holder for five years, he had not “ spent a continuous period of 5 years lawfully in the UK”, as required by paragraph 134(i) of HC 395.
The Reasons for Refusal Letter of 12 January 2010 also considers whether the appellant should be granted indefinite leave on the basis of ten years' continuous lawful residence under paragraph 276B(i)(a) of HC 395, but finds that he is excluded from this category too because, under paragraph 276A(a)(v), continuity of residence is regarded as having been broken if the applicant “ has spent a total of more than 18 months absent from the United Kingdom during the period in question.” The letter goes on to consider Article 8, but because of his long absences in Germany and the United States, does not accept that the appellant has established a private life in the United Kingdom.
When the appeal came before Immigration Judge McLachlan on 3 March 2010 she heard evidence from three witnesses, including two senior personnel from IMI plc. It will be pertinent to quote her summary of the evidence of one of those witnesses, set out at paragraph 9 of her determination.
“Mr Adcock is the Group Supply Chain director for IMI plc, joining the company in February 2009. He is aware of the progress made by the Appellant through the Graduate Development Programme and his current employment, achieved despite stiff competition, with the company as Global Logistics Manager. He referred to the Appellant's outstanding reputation within the company and his value to the company as a member of the team. He confirmed that all candidates under the Global Graduate Scheme are expected to do temporary assignments abroad on behalf of the company. The company make all travel and accommodation arrangements in respect of work done by such graduates for and with subsidiary companies established abroad wholly or jointly promoted by IMI plc. Mr Adcock explained that if the Appellant had to leave the United Kingdom it would have a...
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...in the UK in each of the relevant 12 month periods by reference to the factors which mark “residence” as illustrated in BD (work permit – “continuous period”) Nigeria [2010] UKUT 418 (IAC) (“ 24 BD was a decision of the Upper Tribunal (Immigration and Asylum Chamber) in a panel comprising ......
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Upper Tribunal (Immigration and asylum chamber), 2016-10-31, JR/7355/2015
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Upper Tribunal (Immigration and asylum chamber), 2014-11-06, IA/22142/2014 & Ors.
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