LL (China) v Secretary of State for Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Wilson,Mr Justice Mann |
| Judgment Date | 21 May 2009 |
| Neutral Citation | [2009] EWCA Civ 617 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 May 2009 |
| Docket Number | Case No: C5/2008/2953 |
[2009] EWCA Civ 617
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/19900/2007]
Before: Lord Justice Laws
Lord Justice Wilson and
Mr Justice Mann
Case No: C5/2008/2953
Mr D Bazini (instructed by Messrs Gulbenkian Andonian) appeared on behalf of the Appellant.
Ms K Olley (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
Lord Justice Laws:
This is an appeal with permission granted by Rimer LJ after a hearing on 4 February 2009 against the decision of the Asylum and Immigration Tribunal (the AIT) on 14 October 2008 arrived at on a second stage reconsideration. By it the AIT dismissed the appellant's appeal against the Secretary of State's refusal on 9 November 2007 to grant indefinite leave to remain to the appellant on the basis of long residence.
The appellant is a Chinese national born on 12 April 1984. She arrived in the United Kingdom on 9 September 1997, thus aged 13, with leave to enter as a student. She obtained successive extensions of leave in that capacity, the last of which expired on 31 October 2007. Before that date she successfully obtained GCSEs, A levels and a BSc in accounting and finance at the London School of Economics. In September 2005 she began a full time course intended to lead to the ACCA accountancy qualification. She has not yet completed this course. Her education here has at all times been paid for out of her own, that is her family's, resources. She attended boarding school in the United Kingdom while of school age and returned to her parents in China in the school holidays.
On 10 August 1997, before her student leave finally expired, she applied for indefinite leave to remain on the basis of long residence. That was refused on 9 November 2007 when the appellant was served with a notice of refusal which stated:
“In view of the fact that you were absent from the United Kingdom for more than 18 months between 09 September 1997 and September 2007 it has been decided that you have not had at least 10 years continuous lawful residence in the United Kingdom.”
The appellant appealed against that decision.
On 20 February 2008 Immigration Judge Clough allowed the appeal to the extent that he remitted the matter to the Secretary of State on the footing that she had not considered her own policy on long residence set out in the Immigration Directorate Instructions (the IDIs) chapter 18. The Secretary of State applied for reconsideration of Immigration Judge Clough's decision and reconsideration was ordered by Senior Immigration Judge Lane on 8 May 2008. A first stage reconsideration was conducted before SIJ Spencer, who on 21 May 2008 decided that the original determination of Immigration Judge Clough was flawed for error of law. He held that the appellant could not succeed under the Immigration Rules, because under the relevant rule, 276A, the appellant's absences for more than 18 months meant that she could not demonstrate the necessary period of continuous residence, and the IDI on long residence dated May 2007 was not in SIJ Spencer's view a policy separate from the Immigration Rules. SIJ Spencer accordingly adjourned the case to a second stage reconsideration:
“…in which the only issue will be whether the decision infringed the appellant's rights under Article 8 of the ECHR. The appeal under the immigration rules and on the grounds that the decision was not in accordance with the law will need to be dismissed.”
The second stage reconsideration leading to the decision now under appeal took place on 29 September 2008, and as I have indicated the AIT's determination was promulgated on 14 October 2008. The AIT noted at paragraph 43 that the appellant's representative had confirmed that he would not pursue a case under the Immigration Rules as SIJ Spencer had directed the only issue was the appellant's claim under ECHR Article 8, which of course guarantees respect for private and family life. However, the AIT considered the question whether the appellant met the requirements of paragraph 276 of the Immigration Rules (see paragraph 44). They accepted that the appellant had lawfully resided here (again, paragraph 44) but she then had to show continuous residence for at least ten years (see paragraph 276B(i)(a) of the Rules), that is to say, residence for an unbroken period (276A(a)). Individual periods of absence for six months or less are allowed or as it were forgiven but subject to 276A(a)(v), which provides that a period of residence will be considered to have been broken if during it the appellant has spent a total of more than 18 months absent from the United Kingdom.
Against the background of those Rules the AIT found, accepting the Secretary of State's conclusion in her decision letter of 9 November 2007, that by the date of that decision the appellant had been absent from the United Kingdom for more than 18 months since her arrival (see paragraph 46), indeed for a total period of over three years on the appellant's own schedule put before them (paragraph 47). In those circumstances she could not satisfy the ten year continuous residence requirement. Accordingly the AIT dismissed the appeal under the long residence rule in paragraph 276 and following of the Immigration Rules. That was of course what SIJ Spencer at the first stage reconsideration held would have to be done.
The AIT proceeded to consider certain policies and concessions which had been adumbrated by the Secretary of State before the regime of paragraph 276A-D came into effect on 1 April 2003 and on which the appellant based certain legitimate expectation arguments. One of these was a long residence policy announced by the then Minister of State in 1987. The minister stated:
“Except where the grant of leave would not be in the public interest, a case in which continuous residence exceeds 10 years will be considered on its merits for the grant of indefinite leave to remain. Among the factors to be taken into account are the strength of ties with the United Kingdom and elsewhere, the total length of continuous residence and the proportion of it which has been lawful.”
In relation to this the AIT observed (paragraph 49) that the appellant had been out of the country on 27 occasions since December 1997, that is, on average nearly three times per annum. In fact she had never applied under the long residence policy, which was in any event no longer in force by the time that she had been here for ten years. Her continuous residence had been so short, so it was held, she would likely have failed under that policy and could assert no legitimate expectation to remain by reference to it (see again paragraph 49 of the AIT's decision).
There was also what the AIT referred to as the “2000 long residence concession”. That provided that “where a person has completed 10 years continuous lawful residence he should normally be granted indefinite leave to remain without inquiry”. Continuous residence is defined in paragraph 5 which states that:
“continuity need not be broken by a small...
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