Upper Tribunal (Immigration and asylum chamber), 2017-01-12, [2017] UKUT 76 (IAC) (R (on the application of RN v Secretary of State for the Home Department (paragraph 245AAA))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Allen |
| Status | Reported |
| Date | 12 January 2017 |
| Published date | 17 February 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 11 November 2016 |
| Subject Matter | paragraph 245AAA |
| Appeal Number | [2017] UKUT 76 (IAC) |
R (on the application of RN v Secretary of State for the Home Department (paragraph 245AAA) [2017] UKUT 00076(IAC)
IN THE UPPER TRIBUNAL
Field House
London
Heard on: 11 November 2016
Before
UPPER TRIBUNAL JUDGE ALLEN
Between
THE QUEEN
(on the application of RN)
Applicant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr T Buley, instructed by Spring Solicitors appeared on behalf of the Applicant.
Mr A Wagner, instructed by the Government Legal Department appeared on behalf of the Respondent.
(i) On a proper construction of paragraph 245AAA(a)(i) of HC 395, an absence from the United Kingdom for a period of more than 180 days in one of the relevant 12 month periods will entail a failure to satisfy the requirements of paragraph 245CD.
(ii) The term ‘residence’ in paragraph 245AAA(a) is to be equated to presence.
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APPLICATION FOR JUDICIAL REVIEW
JUDGMENT
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JUDGE ALLEN: I have made an anonymity direction in respect of the applicant. Unless and until a Tribunal or court directs otherwise, the applicant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies to both the applicant and the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
1. This application for judicial review is brought with the permission of McCloskey J and May J following an oral permission hearing on 21 July 2016. In her application the applicant challenges the lawfulness of the respondent’s decision of 13 January 2016 refusing to grant her indefinite leave to remain, and the decision of 15 February 2016 which is an administrative review of the first decision. There is also a supplementary decision of 20 April 2016 which I shall have to address separately.
2. There are three grounds of challenge in this case. The ground to which I will refer as it has been by the representatives as the construction ground was raised as a consequence of a successful application to amend the grounds to incorporate that point. Permission to amend the grounds to include that matter was granted by Mr Justice McCloskey and Mrs Justice Cheema-Grubb on 14 October 2016. I mention that because as a matter of convenience the original two grounds, grounds 1 and 2, have continued to be referred to under those numbers and I shall continue to refer to them in that way although technically they are now grounds 2 and 3.
3. The background history to this case is that the applicant was granted leave to enter on 12 January 2011 and duly entered the United Kingdom on 17 February of that year. Her leave was originally for two years, to 12 January 2013 and was later extended to 12 January 2016. At the time of her entry and up until 13 December 2012 the relevant Immigration Rule governing the acquisition of leave to remain in the United Kingdom after five years’ lawful residence was paragraph 245CD. This Rule required a person to have spent a continuous period of five years lawfully in the United Kingdom and did not specify any maximum period of absence. The relevant policy at the time made it clear that periods of absence abroad, including for holidays and business trips, would not break continuity: “provided that the applicant has clearly continued to be based [in the United Kingdom]”.
4. A new Rule, paragraph 245AAA, was inserted into the Rules from 13 December 2012. The relevant provisions of that Rule state as follows:
“245AAA General requirements for indefinite leave to remain:
For the purposes of references in this Part to requirements for indefinite leave to remain, except for those in paragraphs 245BF, 245DF and 245EF:
(a) ‘continuous period of five years lawfully in the UK’ means, [subject to paragraphs 245CE, 245GF and 245HF] residence in the United Kingdom 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 twelve month periods preceding the date of the application for leave to remain;
...”.
5. On 9 April 2015 a new policy came into being which indicated circumstances in which discretion outside the Rules would be exercised when continuous leave is broken in the case of “serious or compelling circumstances”. It will be necessary to say a little more about the policy in due course.
6. It is common ground that as regards the five one year periods that are relevant for the purposes of this case, during the first period, from 31 December 2010 to 30 December 2011, the applicant was absent from the United Kingdom for a total of 215 days. During the second period, from 31 December 2011 to 30 December 2012, she was absent from the United Kingdom for a total of 284 days. I need say no more about the other three periods since none of them exceeded the 180 day period referred to at paragraph 245AAA(a)(i).
7. The applicant applied for indefinite leave to remain in the Tier 1 (General) Migrant category on 30 December 2015. She made clear the periods of absence that I have set out above as well as the periods of absence for the other three periods. With regard to the period of absence from 31 December 2010 to 30 December 2011, she said that this was because of, first legitimate needs to travel abroad for the purposes of her business exporting goods from the United Kingdom to Nigeria and relocating and reordering the focus of her business, and secondly attending to her children’s schooling at boarding school in Nigeria. With regard to the second period she said that this arose at least in part from the circumstances of her mother having been kidnapped in Nigeria on 4 March 2012 as a result of which she had to spend additional time in Nigeria, inter alia providing support for her father who was frail. She provided a police report in relation to this. She also made it clear that some of the absences during that period were due to business.
8. The respondent refused her application on the basis that as she had been absent from the United Kingdom for over 180 days in two out of the five years it was considered that she did not meet the requirements of paragraph 245CD with reference to paragraph 245AAA as she had not completed a continuous period of five years lawfully in the United Kingdom. She went on to say that due to the total number and nature of the absences which were mainly for work, discretion could not be shown. That latter point was by reference to the provision in the policy which tells the case worker about the exceptional circumstances in which they can grant an applicant indefinite leave to remain outside the Rules when their continuous leave is broken. It is said that in such circumstances the grant of indefinite leave to remain outside the Rules may be considered if the applicant provides evidence to show the excessive absence was due to serious or compelling reasons. It is said that the applicant must provide evidence in the form of a letter which sets out full details of the compelling reason in the absence of supporting documents. The guidance goes on to say that serious or compelling reasons will vary but can include a serious illness of the applicant or a close relative, a conflict, a natural disaster, for example volcanic eruption or tsunami. The guidance then goes on to say that absence in more than 180 days in any twelve month period for employment or economic activity reasons are not considered exceptional. That latter point seems to tie in with the reason for not exercising discretion as set out in the decision letter. There was however no reference to the issue of the applicant’s mother’s kidnapping.
9. This was however addressed in the administrative review which maintained the earlier decision. As regards the first period it is said that it had been claimed that the trips she carried out during that period outside the United Kingdom were of compelling necessity as they brought about the financial support required for her upkeep. It was said that this reason had been considered and it was not thought to be compelling enough to overturn the decision. As regards the issue of her mother being the victim of a kidnap in Nigeria and the fact that she as a consequence had to make frequent travel to Nigeria, this was considered and it was said that from her application she had provided no direct proof of this kidnap and as a result discretion could not be exercised.
The Applicant's Submissions
The Construction Ground
10. In essence Mr Buley’s argument under this heading is that the respondent misconstrued paragraph 245AAA(a) and as a consequence the decisions should be quashed. He referred to a decision of the Upper Tribunal in BD [2010] UKUT 418 (IAC) where the Tribunal was required to construe the phrase “spent a continuous period of five years lawfully in the United Kingdom”, which was required by paragraph 134 of the Immigration Rules in...
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