Mu (‘Statement of Additional Grounds’ - Long Residence - Discretion)
| Jurisdiction | UK Non-devolved |
| Judge | Senior Immigration Judge McKee |
| Judgment Date | 09 November 2010 |
| Neutral Citation | [2010] UKUT 442 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 09 November 2010 |
[2010] UKUT 442 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Senior Immigration Judge McKee
For the Appellant: Mr Zane Malik, Counsel, instructed by Malik Law Chambers
For the Respondent: Mr John Parkinson, Senior Presenting Officer
MU (‘statement of additional grounds’ — long residence — discretion) Bangladesh
1. As held in AS (Afghanistan) and NV (Sri Lanka) [2010] EWCA Civ 1076 , there is no time limit on serving a Statement of Additional Grounds in response to a ‘section 120 notice’. Thus, an appellant may accrue ten years' lawful leave (including leave extended by section 3C of the 1971 Act) while his appeal is pending. The Tribunal may then be asked to decide whether the appellant qualifies for indefinite leave under the Long Residence Rule.
2. An application cannot be made under the Long Residence Rule for only limited leave to remain. Two years' leave may be granted under paragraphs 276A1-4, but only to people who have applied for indefinite leave, and who are ineligible for it solely because their knowledge of English or of life in the UK is not good enough.
The appellant, a citizen of Bangladesh, has been living in the United Kingdom since he arrived here with a student visa on 1 August 2000. His initial grant of one year's leave to enter was followed by successive grants of leave to remain as a student, taking him up to 31 October 2008. Just before this leave expired, the appellant applied for further leave to remain as a Tier 1 (Post-Study Work) Migrant, but this application was refused on 20 th July 2009 because the appellant had based his eligibility upon a postgraduate certificate in Business Management which turned out to be false. As a false document had been submitted, the appellant fell foul of paragraph 322(1A) of the Immigration Rules, as well as not scoring the requisite 75 points under Appendix A.
When his appeal came before Immigration Judge Munonyedi on 15 th January 2010, the appellant explained that he did not take his exams in July 2008 because he was sure he would fail. His father had died in May, and he was unable to concentrate on his studies because of this bereavement. So he purchased a false certificate for £1,500. He did not want to go back to Bangladesh while his wife, who lives with him and their 5-year old son, was still studying here. Her course did not finish until October 2010, while her leave did not expire until February 2011. He asked for a second chance to continue his own studies, and then return to Bangladesh.
Judge Munonyedi dismissed the appeal under the Immigration Rules, and refused to entertain an Article 8 claim as it had not been raised in the Grounds of Appeal, despite the appellant's representative praying in aid AS (Afghanistan) & NV (Sri Lanka) [2009] EWCA Civ 1076. She cited Lady Justice Arden's minority judgment as justifying her refusal. In his grounds for seeking leave to appeal to the Upper Tribunal, the appellant claims that he did raise Article 8 both in his original Grounds of Appeal and in his Witness Statement dated 14 September 2009, which is said to constitute a ‘Statement of Additional Grounds’ under section 120 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
It might perhaps be contended that Article 8 has not been properly raised in either of these places. The Grounds of Appeal say no more than that the refusal of further leave to remain is “ contrary to the provisions of the European Convention on Human Rights Act (sic)”, while the Witness Statement says no more than that “ I have a private and family life established in this country.” The term ‘Article 8’ is not actually mentioned, and one might expect an Article 8 claim to condescend to fuller particulars. Be that as it may, if an obvious human rights point arises in an appeal, the Tribunal must deal with it, whether the appellant has raised it in his grounds of appeal or not. Leave to appeal was indeed granted by Senior Immigration Judge Macleman, restricted to the Article 8 point.
On 8 th July 2010 the appeal was listed before Senior Immigration Judge Martin, and it was contended by Mr Malik, who was now instructed, that his client should be allowed to lodge a further section 120 statement, this time claiming entitlement to remain on the basis of ten years' lawful residence in the United Kingdom. He had not actually reached the tenth anniversary of his sojourn in the United Kingdom, but he would do so on 1 August 2010. Rather generously, it might be thought, the case was adjourned so that the necessary statement might be served and legal argument marshalled. The appeal was re-listed for 9 November, and on 2 November the appellant signed a statement with the following preamble:
“This statement should also be treated as a ‘one-stop’ statement pursuant to s.120 of the Nationality, Immigration and Asylum Act 2002 raising an ‘additional ground’.
When the adjourned hearing came on before me, Mr Parkinson did not dispute that Immigration Judge Munonyedi had made a material error of law by declining to entertain the Article 8 claim, and that, as the decision on the appeal would have to be re-made, a statement under section...
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