HS (Long Residence – effect of IDI September 2004)
| Jurisdiction | England & Wales |
| Judge | H J E Latter,Senior Immigration Judge |
| Judgment Date | 01 December 2005 |
| Neutral Citation | [2005] UKAIT 169 |
| Court | Asylum and Immigration Tribunal |
| Date | 01 December 2005 |
[2005] UKAIT 169
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr H J E Latter - Senior Immigration Judge
Ms D K Gill - Senior Immigration Judge
For the Appellant: Mr S Rossier of the Immigration Advisory Service
For the Respondent: Miss M Donnelley-Wells, Home Office Presenting Officer
HS (Long Residence — effect of IDI September 2004) Pakistan
The provisions of IDI September 2004 do not set out a published policy providing a concession in the application of the provisions of paragraph 276B(i)(b) of HC395 when assessing a claim based on long residence. In the absence of a specific transitional or other saving provision, an application is assessed under the rules as at the date of decision not the date of application.
This is the reconsideration of an appeal by the appellant, a citizen of Pakistan, against the respondent's decision made on 20 June 2005 giving directions for his removal following a decision to refuse indefinite leave to remain on the grounds of long residence. The appeal was allowed by the Immigration Judge, Mr J E Camp. Reconsideration was ordered on 18 August 2005.
The appellant first arrived in this country in about 1985 or 1986. There is no clear evidence as to the precise date. The appellant has asserted that it was 1985 but when he subsequently applied for indefinite leave the date of May 1986 was given. Whatever the date, it is common ground that the appellant made an illegal entry. He obtained a visit visa at the High Commission in Delhi but accepted when interviewed in May 1999 that he had intended to remain. He also accepted that he entered the United Kingdom using a false passport. The appellant stayed in the United Kingdom and by 1988 he was on the records of the Inland Revenue. He has worked as a machinist in a variety of clothing factories.
The appellant came to the attention of the authorities when he was stopped by the police in connection with a driving offence on 12 May 1999. He was interviewed by Immigration Officers on 13 May 1999. They were satisfied that the appellant was an illegal entrant and he was served with a form indicating that he was a person liable to removal. The appellant claimed asylum. This was refused by the Secretary of State in a letter dated 11 October 1999. He certified the claim as unfounded because the appellant was liable to be sent to a designated country. An appeal was submitted against this decision on 25 November 1999 but subsequently withdrawn on 21 January 2000 as the appellant intended to submit an application to remain on the basis of his length of residence.
This application is dated 8 November 2001 and was submitted with a letter from the appellant's representatives dated 19 February 2002. The application is date stamped as received on 2 April 2002. This application was not decided until 20 June 2005. It was refused on the basis that the appellant could not show 14 years continuous residence by reason of the provisions of paragraph 276B(i)(b)of HC 395 which provides that any period spent in the United Kingdom following the service of a notice of liability to removal should be excluded when calculating whether there is 14 years continuous residence. For the appellant to comply with requirements of the rules he would have to have entered this country on or before 12 May 1985. His application gave a date of May 1986 which was particularised as 17 May 1986 in the solicitor's letter of 19 February 2002. It was the Secretary of State's view that the appellant had deliberately sought to evade or circumvent immigration control by using forged documents. Enforcement action had commenced on 12 May 1999. The Secretary of State was not satisfied that there were sufficient compassionate circumstances to justify the exercise of discretion outside the rules. He took into account Article 8. It was his view that any private life had been established when the appellant was in the country unlawfully. Removal would be proportionate.
The appellant appealed against this decision. At the hearing before the Immigration Judge, the appellant gave oral evidence that he had arrived in the United Kingdom in 1985 but he could not remember the month. He lived with his cousin-brother, his cousin's wife and their two daughters. He had a father, brother and sister in India but had no contact with them. He had paid income tax and national insurance. He had never received benefits. He regarded his cousin's family in the United Kingdom as his own. In cross-examination he said that he had no proof of the date of his arrival. The date of 17 May 1986 given in his solicitor's letter was an estimate. He accepted that he had arrived in this country under a false name and with a false passport. The Judge accepted the submission made by the Presenting Officer that it was not certain that the appellant would have been accepted in 2001 as being within the provisions of the long residence concession had his application then been dealt with expeditiously as it was not clear that he had been in the United Kingdom for 14 years at that date. The judge commented that by the date of decision (20 March 2005) there could be no doubt that the appellant had been in the United Kingdom for at least 16 years provided that there was no event which “stopped the clock”. It was the respondent's contention that this happened by the enforcement action notified to the appellant in 1999. The judge noted that it was conceded that the appellant had been subject to removal directions in 1999 and commented that as at the date of application it appeared that only a notice of intention to deport would have the effect of stopping time running.
He held that new rules which did not apply at the date of application should not be applied as at the date of decision. They could not be retrospective without specific provision to that effect. He found that at the date of decision the respondent should have considered the appellant to have been resident in the United Kingdom for at least 16 years commenting that it would have been inequitable for an applicant to be disadvantaged by delay on the part of the Home Office. He noted the tension in the Immigration Rules and Home Office policy as expressed in IDI September 2004 headed “The Long Residence Concession”. It was his view that the respondent's current policy was reflected by the IDI despite the apparently stricter requirements of the Immigration Rules. He referred to paragraph 6 of the IDI dealing with time spent following the service of notice of intention to deport which referred to each case being considered on its merits and to the length and quality of the overall period of residence being taken into account to go with all other relevant factors and balanced against the need to maintain effective control. He found that the appellant had been in the United Kingdom since at least 1988 and possibly since 1985. He had been continuously employed since 1994 and had lived with relatives and become part of their close family. He said that this was an appeal where the requirements of maintaining a fair immigration policy weighed heavily. The appellant had arrived in the United Kingdom illegally and done nothing to regularise his situation before he was arrested in 1999. This had to be balanced under the IDI with the length and quality of his residence. This exercise was similar to considering the question of proportionality under Article 8. It was the Judge's view that the appellant had demonstrated that the balance was in his favour. Further, he found that the appellant had a legitimate expectation that his application would be dealt with within a reasonable time on the basis of a Home Office letter of 3 April 2002 which had indicated that his application might take “6 months or a little longer to deal with”. If it had been dealt with within that time, he would have benefited from the concession. The judge found that the decision was not in accordance with the law or the Immigration Rules. The appeal was allowed on this basis. The judge said that he need not consider the application of Article 8. He directed that the appellant should be given indefinite leave to remain.
In the grounds it is argued that the Judge was wrong to hold that new rules, which had not applied at the date of application, should not be applied as at the date of decision. The appeal should have been determined on the basis of the rules in force at the date of decision not the date of application. It was not open to the judge to suggest that the Secretary of State's discretion should have been exercised differently in the light of his comment that it was not certain that the appellant would have been accepted in 2001 as being within the provisions of the concession, had the application been dealt with expeditiously. The judge was also wrong to conclude that the decision was not in accordance with the law. Reconsideration was ordered, the Senior Immigration Judge summarising the issues as follows:
- Whether the Judge erred in concluding that the appellant's application for leave to remain should have been determined under the terms of the respondent's long residence concession in force at the date of the application rather than under the terms of paragraph 276B of HC 395 as amended in force at the date of decision. 2. Whether he erred by concluding that the respondent's discretion should have been exercised differently and 3. Whether he erred in concluding that the respondent's decision was not in accordance with the law.
Miss Donnelley-Wells submitted that the decision should be made in accordance with the rules as at the date of decision. There were no transitional...
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