MD (Jamaica) and GE (Canada) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Longmore,Sir Mark Potter |
| Judgment Date | 10 March 2010 |
| Neutral Citation | [2010] EWCA Civ 213 |
| Docket Number | Case No: C5/2009/0865 C5/2009/1855 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 March 2010 |
[2010] EWCA Civ 213
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
ASYLUM AND IMMIGRATION TRIBUNAL
Before: Sir Mark Potter—The President of the Family Division
Lord Justice Dyson
and
Lord Justice Longmore
Case No: C5/2009/0865
C5/2009/0865
C5/2009/1855
M.S. GILL Q.C. and N. AHMED (instructed by Messrs Tyndallwoods) for MDDavid JONES (instructed by) for GE
S. SINGH (instructed by Treasury Solicitors) for the Respondents
Hearing dates: 22 nd February 2010
Lord Justice Dyson:
Introduction
These two appeals raise issues as to the interpretation and application of the long residence provisions contained in para 276 of the Immigration Rules HC 395. So far as material, para 276 provides:
“Long Residence
LONG RESIDENCE IN THE UNITED KINGDOM
276A. For the purposes of paragraphs 276B to 276D:
(a) “continuous residence” means 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 applicant is absent from the United Kingdom for a period of 6 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…
(b) “lawful residence” means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain; or
(ii) temporary admission within section 11 of the 1971 Act where leave to enter or remain is subsequently granted; or
(iii) an exemption from immigration control, including where an exemption ceases to apply, if it is immediately followed by a grant of leave to enter or remain.
…………
REQUIREMENTS FOR INDEFINITE LEAVE TO REMAIN ON THE GROUND OF LONG RESIDENCE IN THE UNITED KINGDOM
276B. 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:
(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom…
…
INDEFINITE LEAVE TO REMAIN ON THE GROUND OF LONG RESIDENCE IN THE UNITED KINGDOM
276C. Indefinite leave to remain on the ground of long residence in the United Kingdom may be granted provided that the Secretary of State is satisfied that each of the requirements of paragraph 276B is met.
REFUSAL OF INDEFINITE LEAVE TO REMAIN ON THE GROUND OF LONG RESIDENCE IN THE UNITED KINGDOM
276D. Indefinite leave to remain on the ground of long residence in the United Kingdom is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 276B is met.”
From time to time, the Secretary of State issues Immigration Directorates' Instructions (“IDIs”) which contain instructions to caseworkers as to how they should decide immigration issues. The version of chapter 18 of the IDIs in force between June 1998 and March 2006, was entitled “The Long Residence Concession” (“LRC”). Para 3 of the LRC provided:
“ UNLAWFUL 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 may for the purposes of this concession be considered as lawful:
• A short delay in submitting an application, provided the application is subsequently granted;”
A new version of chapter 18 was issued in May 2007. A yet further version was issued in April 2009, para 2.3.3 of which provided:
“Breaks in lawful residence and the use of discretion
Caseworkers should be satisfied that the applicant has acted lawfully throughout the entire period and has made every attempt to comply with the immigration rules.
If an applicant has a single short gap in lawful residence through making one single previous application out of time by a few days (not usually more than 10 calendar days out of time) caseworkers should use discretion granting ILR, so long as the application meets all the other requirements.
It would not usually be appropriate to exercise discretion when an applicant has more than one gap in their lawful residence due to submitting more than one of their previous applications out of time, as they would not have shown the necessary commitment to ensuring they have maintained lawful leave throughout their time in the UK.
It may be appropriate to use your judgment in cases where an applicant has submitted a single application more than 10 days out of time if there are extenuating reasons for this (e.g. postal strike, hospitalisation, administrative error on our part etc). This must be discussed with a Senior Caseworker.
Examples of use of discretion:
The following examples illustrate some instances in which it may/may not be appropriate to exercise discretion. Please note this is not an exhaustive list of scenarios and each application should be judged on its own merits and discussed with a Senior Caseworker.”
Both appellants sought indefinite leave to remain in the UK on the basis of 10 years continuous lawful residence. Both had been continuously resident for a period in excess of 10 years. But their applications were refused by the Secretary of State on the grounds that they had not been lawfully resident in the UK throughout the period. There had been a period or periods during which they had been overstayers, after their leave to remain had expired and before they had sought and been granted further leave to remain.
Marjorie Drysdale: the facts and the decision under appeal
Ms Drysdale was born in 1954. She is a Jamaican national. She came to the UK from Jamaica on 19 December 1996 and was granted leave to enter as a visitor for 6 months. On 30 July 1997, she made the first of a number of successful applications for leave to remain as a student. On 17 January 2008, she applied for indefinite leave to remain under para 276B(i)(a) of HC 395. On 25 June 2008, the Secretary of State refused her application on the grounds that she had not been in continuous lawful residence in the UK for a period of at least 10 years. There had been two interruptions of the continuity of her lawful residence. The leave to remain granted to her on 23 September 1999 had expired on 31 July 2000, but she did not apply for further leave to remain until 14 August 2000 and her application was not granted until 26 August 2000. The second interruption occurred as a result of the expiry on 31 October 2002 of the leave to remain granted 26 August 2000. She did not apply for further leave to remain until 18 December 2002 and this application was not granted until 26 February 2003.
It can be seen, therefore, that the intervals between the expiry of her existing leave to remain and the date on which she applied for further leave to remain were 2 and 7 weeks respectively.
On 4 July 2008, Ms Drysdale appealed against the decision of the Secretary of State. On 26 August 2008, her appeal was allowed by IJ Iqbal. On 3 September, the Secretary of State applied for a reconsideration of IJ Iqbal's decision. Reconsideration was ordered by SIJ Waumsley. On 27 November 2008, SIJ Nichols decided that IJ Iqbal had erred in law in his determination. He adjourned the reconsideration hearing.
On 16 February 2009, upon a full reconsideration, IJ Khan dismissed the appeal of Ms Drysdale. She appeals to this court with the permission of Elias LJ.
Having set out the facts, IJ Khan referred to para 276 and at para 18 of his Determination said:
“I find that the Rules mean exactly what they say and therefore the appellant has not had continuous lawful residence to meet the requirements of paragraph 276B and therefore the appeal must fail on this account. I am aided in this conclusion by the Tribunal decision in OS [2006] UKAIT00031 where it was said that paragraphs 276A-D of HC 395 stand alongside the public 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. However, the concession was withdrawn by the Secretary of State in 2006 and the Tribunal in ordering reconsideration, said at paragraph 6 of the decision that the concession gave guidance to Immigration Officers that a short delay in submitting an application, provided the application was subsequently granted, would not in effect, be fatal to a claim that there had been continuous lawful residence. Nevertheless, as the Immigration Judge set out at paragraph 20 of her determination, the concession had been long withdrawn by the time of this decision and even if it had existed, the appellant's application would have considered separately under the concession rather than the terms of the concession being used as an aid to interpret the Rules. In this respect the judge took account clearly of what the tribunal had found in OS.”
He then addressed the submission that to refuse the claim for indefinite leave to remain would violate the appellant's rights under article 8 of the European Convention of Human Rights (“ECHR”) and said:
“26. In relation to the Article 8 claim, upon the evidence before me I am not satisfied that the appellant has established the right to respect to a family life under Article 8 (1) because in fact she has no family here. She is a single woman and she is not in a relationship with anyone. Her family live in Jamaica and the USA and therefore there can be no question of a protected right being established in respect of any family life in the UK. However, the appellant has been living in the UK...
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