Sa (Long Residence Concession)
| Jurisdiction | England & Wales |
| Judge | or,Senior Immigration Judge Storey |
| Judgment Date | 12 February 2009 |
| Neutral Citation | [2009] UKAIT 51 |
| Date | 12 February 2009 |
| Court | Asylum and Immigration Tribunal |
[2009] UKAIT 51
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Senior Immigration Judge Storey
Senior Immigration Judge Grubb
For the Appellant: Mr M S Alam, Legal Representative from Capital Solicitors
For the Respondent: Miss T Karunatilake, Home Office Presenting Officer
SA (long residence concession) Bangladesh
1. Where a more timely decision could have been made in respect of a person who had already accrued the relevant period of residence during the time when the (previous) long residence concession was still in force, i.e. up to 1 March 2006, that concession is a relevant factor in an Article 8 claim (see FH (Bangladesh) [2009] EWCA Civ 385 ). But in deciding whether the decision was in accordance with the law, that concession cannot assist someone who only applied (and was only in a position to apply) for long residence after its withdrawal: seeLL (China) [2009] EWCA Civ 617.
2. The recent revision in Home Office policy, as set out in the April 2009 IDIs dealing with long residence, means that there is, once again, a situation in which immigration rules dealing with long residence co-exist with a policy concession (set out in these IDIs) that in at least one respect is more generous. But in deciding whether the decision is “in accordance with the law”, the revived policy will not assist those in respect of whom a decision was made before it came (back) into existence: see AG and Others (Policies; executive discretions; Tribunal's powers) Kosovo [2007] UKAIT 00082 .
The appellant is a citizen of Bangladesh. In a determination notified on 3 July 2008 Immigration Judge (IJ) T Davidson dismissed the appellant's appeal against a decision dated 4 May 2008 refusing the appellant's application to vary his leave to remain on the basis of long residence. The appellant had come to the UK as a student and received a number of grants of limited leave to remain in that capacity. In respect of one of them made in 1999, however, he had applied a short number of days late. The IJ considered that because of the consequent break of sixteen days when the appellant did not have leave to remain, he had not been lawfully resident continuously for ten years as required by paragraph 276A of Statement of Changes in Immigration Rules HC 395 as amended.
It is necessary to give more precise particulars. The appellant entered the UK on 9 October 1997 and was granted leave to remain as a student until 31 July 1998. On 6 July 1998 he was granted further leave to remain until 30 September 1999. In early October 1999 he applied for further leave to remain. The respondent accepted that application, albeit late, and granted him further leave to remain from 16 October 1999 until 30 September 2000. Subsequent extensions were granted up to 31 January 2008. It is common ground, therefore, that unless his continuity of residence had been broken in October 1999, he met the requirements of paragraph 276A in full.
The IJ found at para 28 that the appellant's continuity of lawful residence had been broken in early October 1999. The appellant's grounds for reconsideration challenged this finding on three main bases. First the decision of the IJ was said to be contrary to a Home Office Immigration Directorate Instructions (IDIs) dealing with long residence which allow for a short delay provided that the application is subsequently granted. Second it was contended that “para 276A(b)(ii) defines lawful residence as continuous residence pursuant to temporary admission … where LTR [Leave to Remain] is subsequently granted”. The appellant's third ground had two limbs: the first argued that the respondent, by subsequently granting the appellant further leave to remain in October 1999, had regularised any break in continuity, so that the residence requirement was satisfied; the second contended that, by repeatedly granting the appellant further leave, the respondent had created a legitimate expectation on the part of the appellant that his presence in the UK had been lawful and continuous for the requisite period.
The appellant had also invoked a fourth ground, alleging that the IJ had erred in concluding that Article 8 was not engaged in this case, despite finding that the appellant did have a private life. However, Mr Alam confirmed that the Article 8 ground was no longer relied on.
In a decision dated 1 December 2008 Senior Immigration Judge (SIJ) Storey found that the IJ had materially erred in law because he had failed to take sufficient steps to establish whether there was in existence at the relevant time a concessionary policy whose effect was to disregard short periods of delay in submitting an application for further leave to remain for other purposes, where the application is subsequently granted. It was thus that the matter came before us for (second-stage) reconsideration.
The contents of the Statement of Changes in Immigration Rules HC 395 governing long residence are set out at paragraphs 276A and 276B. These state:
“Long residence in the United Kingdom
276A. For the purposes of paragraphs 276B to 276E:
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, but shall be considered to have been broken if the applicant:
(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or
(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or
(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or
(iv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or
(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.
(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;
or(b) he has had at least 14 years continuous residence in the United Kingdom, excluding any period spent in the United Kingdom following service of notice of liability to removal or notice of a decision to remove by way of directions under paragraphs 8 to 10A, or 12 to 14, of Schedule 2 to the Immigration Act 1971 or section 10 of the Immigration and Asylum Act 1999 Act, or of a notice of intention to deport him from the United Kingdom; and
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) previous criminal record and the nature of any offence of which the person has been convicted; and
(f) compassionate circumstances; and
(g) any representations received on the person's behalf; and
(iii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application.”
In order to decide what decision to substitute for that of the IJ, we first consider the appellant's position under the Immigration Rules, second his position under Home Office policy, third, his position in relation to any legitimate expectation.
In the course of submissions, both before the IJ and before us, there was some argument as to the precise date on which the appellant applied for further leave to remain in early October 1999. The Home Office file suggested the appellant had applied in person on 12 October 1999; Mr Alam suggested at several points that in fact it was an earlier date by several days. In our judgment, for the purposes of this appeal, the precise date in October 1999 when he applied does not matter. Even on the earliest possible date on which Mr Alam stated the appellant could be said to have applied (namely 7 October 1999, the date he signed the application form) he was already six or seven days late. His leave to remain expired on 30 September 1999.
In any event, once an application is made after expiry of limited leave to remain the respondent is not obliged to reach a decision within any particular period, certainly not within a few days. There was nothing unlawful about no decision being made...
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