Pembele (Paragraph 399(B)(1) - "Valid Leave" - Meaning) [Upper Tribunal]

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeReeds UTJ,Kopieczek UTJ,Kebede UTJ,Reeds,Kebede,Kopieczek
Judgment Date10 June 2013
Neutral Citation[2013] UKUT 310 (IAC)
Date10 June 2013

[2013] UKUT 310 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)





Paul Zanoto Pembele
Secretary of State for the Home Department

For the Appellant: Mr D Furner, instructed by Birnberg Peirce and Partners

For the Respondent: Mr Avery, Senior Home Office Presenting Officer

Pembele (Paragraph 399(b)(i) — “valid leave” — meaning)

The term “valid leave”, as appears at paragraph 399(b)(i) of the Immigration Rules, means leave to enter or remain under the Immigration Act 1971. Periods of temporary admission cannot be counted when calculating whether a person has achieved the necessary 15 years residence under that rule.


1. The appellant is a citizen of the Democratic Republic of the Congo (DRC), born on 8 March 1983. He has been given permission to appeal against the decision of the First-tier Tribunal dismissing his appeal against the respondent's decision that section 32(5) of the UK Borders Act 2007 applied.

2. The appellant arrived in the UK on 13 August 1991 with his parents and sister. His father made an application for asylum including him as a dependant. As the asylum claim was still outstanding in January 1999 his father was granted indefinite leave to enter on 28 February 1999 as part of an asylum backlog clearance announced by the Government in a White Paper. He was granted leave in line with his father.

3. Between February 1999 and March 2011 the appellant amassed a total of 29 convictions for 86 offences in the United Kingdom. On 4 May 2010 he was convicted on three counts, of handling stolen goods, driving whilst disqualified and using a vehicle without insurance. He was sentenced on 29 July 2010 to 15 months' imprisonment on count 1 and 3 months' imprisonment consecutive on count 2, with no separate penalty on count 3, making a total of 18 months' imprisonment. He was also disqualified from driving for 5 years. Whilst serving his custodial sentence for these offences he was convicted, on 31 January 2011, of unlawful wounding, and sentenced on 8 March 2011 to 18 months' imprisonment concurrent to the aggregate of 18 months' imprisonment imposed on 29 July 2010.

4. As a result of his convictions, the appellant was informed, on 14 November 2011, of his liability to automatic deportation. He responded, giving details of his partner, SN, a British national of Congolese origin, with whom he had been in a relationship since June 1999 (in subsequent evidence amended to 2003) and his three British children from that relationship with whom he had been living prior to his imprisonment, with his partner, namely MP born in 2005, BN born in 2006 and SP born in 2010.

5. A deportation order was signed against the appellant on 2 October 2012 and on 3 October 2012 a decision was made that section 32(5) of the UK Borders Act 2007 applied. He appealed against that decision and his appeal was heard on 7 January 2013 before the First-tier Tribunal, by a panel consisting of First-tier Tribunal Judge Boardman and Mr M G Taylor.

Appeal before the First-tier Tribunal

6. The Tribunal heard from the appellant, his partner SN, his sister and his friend. They noted that it was accepted by the respondent that he had three British children; that, aside from when in prison, he had continuously lived with his children at his partner's address; and that it would not be reasonable to expect them to relocate to the DRC with him. They found that his partner was not willing to relocate to the DRC and that she would be able to care for the children in the United Kingdom if he were removed. As such, they found that the appellant did not meet the requirements of paragraph 399(a) of the Immigration Rules. The Tribunal found further that the appellant had a relationship with SN, albeit not a strong one, and that they had lived together since 2005. However, since he had lived in the United Kingdom with valid leave for less than 15 years, having acquired his leave to remain in 1999 and spent 5 years in prison, he did not meet the requirements of paragraph 399(b) of the Rules. Neither could he meet the requirements of paragraph 399A and, as such, and in the absence of any exceptional circumstances, his deportation was required in the public interest, in accordance with the Immigration Rules. With regard to Article 8 of the ECHR, the Tribunal found that the appellant had established family and private life ties in the United Kingdom, albeit neither were strong ties, and that Article 8 was engaged as a result of the interference caused by the respondent's decision to deport him. They found, nevertheless, that such interference was not disproportionate to the legitimate aims, namely the prevention of crime and the maintenance of an effective immigration control, and that his deportation would not breach Article 8. They accordingly dismissed the appeal on all grounds.

7. Permission to appeal to the Upper Tribunal was sought on behalf of the appellant, on several grounds. The grounds, in summary, assert that the Tribunal had erred in law in its Article 8 proportionality assessment by failing to consider the length of time spent by the appellant in the United Kingdom as a child, by failing to take into account that he had been lawfully in the United Kingdom throughout the entire period of his stay, by perversely drawing a distinction between valid leave and being lawfully present in the United Kingdom and failing to take this into account as a near miss, by failing to take account of the children's best interests as a primary factor and by finding that the appellant's family and private life was not strong. The grounds assert further that the Tribunal erred in law in stating that the appellant did not meet the requirements of paragraph 399(b)(i) of the Immigration Rules and by excluding, in calculating the relevant 15 year period, the period spent lawfully in the United Kingdom on temporary admission from his entry in 1991 until the grant of indefinite leave in 1999.

8. In granting permission to appeal on 8 February 2013, Upper Tribunal Judge Martin considered it arguable that the First-tier Tribunal had erred in finding that paragraph 399(a) or (b) did not apply since it was arguable that the appellant had been in the United Kingdom with leave throughout. Permission was also granted on the basis of an arguable failure to address the principles in Uner v The Netherlands - 46410/99 [2006] ECHR 873 and Maslov v Austria - 1638/03 [2008] ECHR 546 when considering Article 8.

Appeal hearing and submissions

9. The appeal came before us on 18 April 2013. Skeleton arguments had been submitted by both parties in advance of the hearing, in accordance with directions from the Tribunal, to address the first point upon which permission had been granted, with respect to paragraph 399(b)(i) of the Immigration Rules. The respondent's skeleton had been prepared by Mr Deller, although it was Mr Avery who appeared before us on behalf of the respondent.

10. Mr Furner took us through his skeleton argument in submitting that the meaning of the phrase “valid leave” in paragraph 399(b)(i) was that the individual concerned had lawful permission to be in the United Kingdom throughout the relevant period. In so doing, he referred us to case law relevant to the interpretation of the Immigration Rules and to the Explanatory Memorandum to HC 194, the Statement of Changes which incorporated paragraph 399(b) into the Rules. He submitted further that periods of stay on temporary admission were periods of lawful residence, so that the appellant's stay in the United Kingdom from his entry in 1991 until the grant of indefinite leave to remain in 1999 was valid leave within the meaning of paragraph 399(b)(i) such that the requirements of that Rule had been met. Accordingly the decision to deport the appellant was unlawful and the decision of the First-tier Tribunal ought to be set aside and re-made by allowing the appeal. In the event that we were against him in that regard, Mr Furner submitted that the Tribunal had erred in law by failing to consider, in their Article 8 proportionality assessment, that the distinction between valid leave and lawful residence was an objectionable one and was unjustifiable in the context of public interest considerations; by failing to take account of the respondent's delay in dealing with the appellant's father's asylum claim; by failing to apply the principles in Maslov and by failing to give proper consideration to the best interests of the children. He submitted further that the Tribunal had erred by finding the appellant's private life not to be a strong one.

11. Mr Avery submitted that temporary admission was not leave to remain under the Immigration Rules and did not constitute “valid leave” under paragraph 399(b)(i). The distinction between the two did not give rise to any public interest considerations under Article 8 of the ECHR and the Tribunal had not erred in their findings on Article 8 in that or any other respect.

12. Mr Furner, by way of response, reiterated the points initially made.

13. It was agreed by all parties that if we were to find an error of law in the First-tier Tribunal's decision in regard to the period of “valid leave” for the purposes of paragraph 399(b)(i) of the Rules, that would be the end of the matter, since the decision would simply have to be re-made by allowing the appellant's appeal. If, however, we found no error in that respect, but found errors on the other grounds relating to Article 8 of the ECHR, the hearing would have to be resumed on a subsequent occasion in order for submissions to be made with a view to re-making the decision.

Consideration and findings

14. We commence by setting out the relevant provisions of the Immigration Rules relating to deportation...

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4 cases
  • Upper Tribunal (Immigration and asylum chamber), 2013-06-10, [2013] UKUT 310 (IAC) (Pembele (Paragraph 399(b)(i) – “valid leave” – meaning))
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 10 June 2013
    ...} a:link { color: #0000ff } Upper Tribunal (Immigration and Asylum Chamber) Pembele (Paragraph 399(b)(i) – “valid leave” – meaning) [2013] UKUT 00310 (IAC) THE IMMIGRATION ACTS Heard at : Field House Determination Promulgated On : 18 April 2013 ………………………………… Before UPPER TRIBUNAL JUDGE KEBE......
  • Upper Tribunal (Immigration and asylum chamber), 2017-03-22, AA/10610/2015
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 22 March 2017
    ...available in Sri Lanka but the Judge placed too much weight on the guidance in GJ and others (post-civil war: returnees) Sri Lanka [2013] UKUT 00310 (IAC) especially as the categories are not an exhaustive list. The Judge gave her own opinion and applied the wrong standard of proof. The Jud......
  • Upper Tribunal (Immigration and asylum chamber), 2016-02-12, AA/04323/2015
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 12 February 2016
    ...and the Anti-Trafficking Convention. The decision of the Upper Tribunal in EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania [2013] UKUT 00310 (IAC) is cited. In light of the Presenting Officer’s concession that the Appellant entered the United Kingdom lawfully and therefore did obt......
  • Upper Tribunal (Immigration and asylum chamber), 2014-12-11, AA/03056/2014
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 11 December 2014
    ...appellant would not be at risk on return to Sri Lanka. The judge has properly considered GJ and Others (post-civil war returnees) [2013] UKUT 00310 (IAC), and applied it to the particular facts of the The paragraph numbering and layout of the determination is rather confusing. However, at §......

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