Roli Nesiama v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Moylan,Lord Justice Singh,Lord Justice Hickinbottom
Judgment Date14 June 2018
Neutral Citation[2018] EWCA Civ 1369
Date14 June 2018
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C6/2017/0369

[2018] EWCA Civ 1369

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGE ALLEN

Appeal No JR/3712/2016

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Hickinbottom

Lord Justice Moylan

and

Lord Justice Singh

Case No: C6/2017/0369

The Queen on the Application of

Between:
(1) Roli Nesiama
(2) Omatseye Oweyinmi Nesiama
(3) Oritsemoyogbemi Ortitsetimeyin Nesiama
(4) Oritsemoghoghbone Omatseye Nesiama
Appellants
and
The Secretary of State for the Home Department
Respondent

Amanda Weston QC (instructed by Spring Solicitors) for the Appellant

Andrew Byass (instructed by Government Legal Department) for the Respondent

Hearing date: 6 June 2018

Judgment Approved

Lord Justice Hickinbottom

Introduction

1

Under paragraph 245CD(c) and (d) of the Immigration Rules (“the Rules”), to qualify for indefinite leave to remain (“ILR”) in the United Kingdom (“the UK”), an applicant is generally required to show that he has spent “a continuous period [of five years] lawfully in the UK…”. By paragraph 245AAA(a)(i), that is defined as being “residence in the [UK] for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where… the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application…”.

2

This appeal raises a narrow but important issue of construction as to the meaning of “residence” for these purposes. The judge below equated “residence” with physical presence. The Appellants contend that he was wrong to do so because, in determining residence, other factors such as owning property, maintaining a home, paying income tax and council tax, and other private and family connections are relevant and must be taken into account.

3

Before us, Amanda Weston QC appeared for the Appellant, and Andrew Byass for the Secretary of State. At the outset, I thank them for their respective helpful contributions to the debate.

The Law

4

Under the points-based system (“the PBS”) of Part 6A of the Rules, paragraph 245CD (numbered paragraph 245E until 6 April 2011) sets out requirements for ILR, with the following introductory rubric:

“To qualify for [ILR], a Tier 1 (General) Migrant must meet the requirements listed below. If the applicant meets these requirements, [ILR] will be granted. If the applicant does not meet these requirements, the application will be refused.”

5

Requirement (c), the relevant requirement for the purposes of this appeal, is as follows:

“(c) The applicant must have spent a continuous period as specified in (d) lawfully in the UK, of which the most recent period must have been spent as a Tier 1 (General) Migrant…”;

and, for someone in the circumstances of the Appellants, requirement (d)(ii) specifies a continuous period of five years.

6

The rule itself did not originally specify any maximum period of absence from the UK. However, the relevant policy as at 12 January 2011 (when the Appellant was first granted leave to remain as a Tier 1 (General) Migrant: see paragraph 14 below) until April 2011, namely Immigration Directorate Instructions (“IDI”) Chapter 6A: Section 1 – Settlement – Tier 1: Annex A (“the IDI Guidance”) stated as follows:

“In assessing whether or not an applicant has fulfilled the requirement to have spent five years in continuous residence in the UK, short absences abroad, for example for holidays (consistent with annual paid leave) or business trips (consistent with maintaining employment or self-employment in the [UK]), may be disregarded, provided the applicant has clearly continued to be based here.

Discretion in cases where continuous residence has been broken

In addition, time spent here may exceptionally be aggregated, and continuity not insisted upon, in cases where:

• there have been no absences abroad (apart from those described in the paragraph above) and authorised employment or business here has not been broken by any interruptions of more than three months or amounting to more than six months in total;

or

• there have been longer absences abroad, provided the absences were for compelling grounds either of a compassionate nature or for reasons related to the applicant's employment or business in the [UK]. None of the absences should be of more than three months duration, and they must not amount to more than six months in total for the whole five year period.”

It is noteworthy that, although paragraph 245CD of the Rules did not itself refer to “residence” at all, the guidance used the phrase “the requirement to have spent five years in continuous residence in the UK” to mean the requirement of paragraph 245CD(c) and (d).

7

From 8 April 2011, Annex A was replaced by a new Annex B, paragraph 2 of which was in materially the same terms as former Annex A except that the last sentence of the second bullet point (i.e. the maximum number of days that would be allowed for absences for compassionate or employment reasons) was removed.

8

In addition, from 26 January 2011, there was parallel “Modernised Guidance”. This was shorter than the IDI Guidance, and was regularly updated. The first version (Version 1), so far as relevant, stated:

Calculating the continuous period in the UK

You can ignore short absences abroad if it is clear that the applicant has continued to be based in the UK. For example, an absence for a:

• holiday consistent with paid leave entitlements

• business trips consistent with maintaining employment or self-employment in the UK

Discretion when continuous residence has been broken

Exceptionally, you may add periods spent in the UK to form an unbroken continuous residence in cases where:

• there have been no absences abroad (apparat from those described above) and authorised employment or business has been broken by:

○ any single interruption of more than three months or

○ interruptions that total more than six months.

• there have been significant absences abroad but the reasons for these were:

○ compelling ones of a compassionate nature or

○ to do with the applicant's employment or business in the UK.

○ no single absence abroad should be for more than three months at a time and they must not total more than six months.”

9

The Modernised Guidance was updated from time-to-time. The following changes are noteworthy.

i) In Version 3, from 20 July 2011, for Tier 1 (Investors and Entrepreneurs) only, the following was added:

“When assessing if an applicant has met the criteria for continuous residence in the UK, absences of up to 180 days in any 12 calendar months may be disregarded”.

ii) In Version 5, from 19 July 2012, for all qualifying categories, the following was added:

“If total of all absences exceed 180 days over the five year period, continuity will be broken”.

10

By the time of the grant of the Appellant's further leave to remain on 17 January 2013 (see paragraph 14 below), the Rules had changed. A new paragraph 245AAA(a) was introduced by Statement of Changes HC 760 with effect from 13 December 2012. It gave the following definition, so far as relevant to this appeal:

“‘continuous period of 5 years lawfully in the UK’ means, subject to [paragraph] 245CD…, residence in the [UK] for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where:

(i) the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain, except that any absence from the UK for the purpose of assisting with the Ebola crisis which began in Africa in 2014 shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and his Sponsor agreed to the absence(s)…”.

11

The IDI Guidance was abandoned from the date of the implementation of the Rule (13 December 2012); but a new version of the Modernised Guidance (Version 6) was issued that day by the Secretary of State. Page 10 of the new guidance, which said it was the page “which tells you when absences will not break continuity when calculating if the continuous period requirement has been met”, stated:

“No more than 180 whole days absence are allowed in any of the five… consecutive 12 month periods, preceding the date of the application for [ILR]…”.”

12

From 9 April 2015, Modernised Guidance Version 12 came into effect. This was the current guidance at the time of the decision challenged in this claim. Two parts are relevant to this appeal.

How to determine if the continuous period is lawfully spent in the UK

This page tells you how to determine if the continuous period is spent lawfully in the UK.

You must refuse indefinite leave to remain (ILR) if the applicant does not meet the continuous period requirement set out in the Immigration Rules.

The Secretary of State considers a grant of ILR in the UK to be a privilege and the continuous period requirement is the minimum amount of time which a migrant must spend in employment or being economically active in the UK before being eligible to qualify for ILR…”. (page 8).

Exceptional cases

This page tells you about the exceptional circumstances when you can grant the applicant [ILR] outside the rules when their continuous leave is broken.

Absences of more than 180 days in each consecutive 12 month period preceding the date of application… will mean the continuous period has been broken. However, you may consider the grant of [ILR] outside the rules if the applicant provides evidence to show the excessive absence was due to serious or compelling reasons.

Absence of more than 180 days in any 12 month period for employment or economic activity reasons are not considered exceptional…” (page 30).

The Facts

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2 cases
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    ...the background to the scheme contained in paragraph 245AAA in detail: see R (on the application of Roli Nesiama and others) v SSHD [2018] EWCA Civ 1369. The Court of Appeal upheld the Upper Tribunal's decision in RN. In assessing the intention of paragraph 245AAA as it stood at the date of ......

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